The Applicants are also challenging the constitutional validity of Section 41 of the Immigration Act 13 of 2002, to the extent that its application is not confined to public spaces, authorising warrantless searches in private places that include the home and places of study, work, and/or business; and to the extent that it does not require an immigration officer or police officer to hold a reasonable suspicion that a person is unlawfully in South Africa before requesting such persons to identify themselves as a citizen, permanent resident, refugee, asylum seeker or undocumented migrant.

The South African Human Rights Commission (SAHRC/Commission) is cited in these proceedings, as a thirteenth respondent, based on the work it has done against xenophobia, however, no relief is sought against the Commission.

The Commission’s Gauteng Provincial Office in 2024 received a complaint involving a South African minor, too young to have an ID, who was unlawfully arrested and put in the back of a SAPS van with adults and then detained in a holding cell with adults as part of SAPS’s clampdown on illegal immigrants.

The Commission has made written submissions, which will be orally presented before the High Court, challenging Section 41 of the Immigration Act to the extent that it causes minors to be apprehended immediately without a warrant and not as a measure of last resort as contemplated in the Constitution, the Children’s Act 38 of 2005 and the Child Justice Act 75 of 2008, as well as multiple decisions by the Constitutional Court on the detention of children as a measure of last resort.

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ISSUED BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION