High Court Judgment a victory for migrants in South Africa
28th August 2014
Attention: Editors and Reporters
The South African Human Rights Commission welcomes the judgment handed over by the South Gauteng High Court in a matter relating to the illegal detention of immigrants against the Department of Home Affairs.
The judgment was given today, the 28th August 2014, in the matter of the South African Human Rights Commission & others v Lindela Repatriation Centre & others.
The court declared judgment in favour of the South African Human Rights Commission (SAHRC), People Against Suffering, Suppression, Oppression and Poverty (PASSOP), and 39 individuals who were detained in Lindela. These organisations and individuals were represented by the Legal Resources Centre (LRC).
In this matter, the SAHRC and other applicant organisations argued that Lindela’s practices regarding detention at the facility are unconstitutional and in contravention of the Immigration Act 13 of 2002.
Lindela is the only facility of its kind in South Africa where illegal migrants are detained while awaiting deportation. The individuals in this matter had been subject to inhumane treatment, including being detained for longer than 30 days without the necessary warrant of a magistrate permitting extended detention, experiencing a miscalculation by the Department of Home Affairs of the start of the 30 day period of detention; the failure of Lindela officials to follow the fair procedure and; keeping the migrants in detention for longer than 120 days.
Handing down his judgement, Judge Tsoka pointed out that the actions of the Department and the Minister in detaining the migrants at the Lindela Repatriation Centre are unlawful and unconstitutional.
Although the individuals in detention had been released prior to the current matter being heard in court, the SAHRC was concerned about the longstanding history of violations of the Immigration Act and detainees’ constitutional rights at Lindela, dating back to at least February 2000. Furthermore, Lindela denied repeated requests to issue reports on the facility, despite the fact that the SAHRC is statutorily authorised to make these requests.
The court ordered Lindela Repatriation Centre to, without delay, cease all practices that result in non-compliance with the Immigration Act, such as those experienced by the individuals in this matter. It further ordered that Lindela allow the SAHRC access to the facility on a regular basis and that regular reports on the number and status of detainees at Lindela be issued.
In particular the Judge ordered that the Department ensure that no person is detained for a period exceeding 30 days from the date on which that person was first arrested.
While Lindela is a self-regulating facility, the court felt that oversight by institutions such as the SAHRC is necessary considering the systemic and pervasive noncompliance with detainee’s constitutional rights.For comments email email@example.com [Back]
The SAHRC sees this as a victory for migrants in South Africa. This re-affirms our commitment to protecting the rights of vulnerable members of our communities, including those coming from outside, and serves as a stern warning to the Department of Home Affairs to consistently comply with the rights of detainees.
Issued jointly by the SA Human Rights Commission and Legal Resources Centre
LRC Communications Officer