IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT38/16 HIGH COURT CASE NO: 39171/2014
In the matter between:
LAWYERS FOR HUMAN RIGHTS Applicant
and
MINISTER OF HOME AFFAIRS First Respondent DIRECTOR-GENERAL:
DEPARTMENT OF HOME AFFAIRS Second Respondent
MINISTER OF POLICE Third Respondent
MINISTER OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT Fourth Respondent BOSASA (PTY) LTD T/A
LEADING PROSPECTS TRADING Fifth Respondent
APPLICANT’S PRACTICE NOTE
THE NATURE OF THE PROCEEDINGS
This is an application concerning the interpretation and constitutional validity of two sections of the Immigration Act 13 of 2002 (the Act) which were declared to be constitutionally invalid by the High Court.
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ISSUES TO BE ARGUED
1 The importance of judicial oversight of the detention of vulnerable persons.
2 Whether the provisions of the Act are constitutionally invalid due to the absence of an automatic warrant procedure.
3 Whether the provisions of the Act which do not require personal appearance by a detainee before a magistrate can be read consistent with the provisions of the Constitution, alternatively whether they are constitutionally invalid.
4 Whether the applicant should be granted ancillary relief.
PORTIONS OF THE RECORD NECESSARY FOR THE DETERMINATION OF THE MATTER
The whole record.
ESTIMATED DURATION OF ORAL ARGUMENT
One day.
SUMMARY OF ARGUMENT
5 Persons detained under the Act are among the most vulnerable members of society. The rights of detained persons are enshrined inter alia in sections 12(1) and 35(1)(d) of the Constitution. These provisions provide for the judicial
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oversight of the detention of persons by requiring an arrested person to be brought before a court automatically and in person.
6 We submit that sections 34(1)(b) and (d) of the Act are constitutionally invalid on two independent bases.
7 First, section 34(1)(b) does not require a detained person to be brought automatically before a court within 48 hours, contrary to sections 12(1) and 35(1)(d) of the Constitution.
8 Second, the Department interprets sections 34(1)(b) and (d) of the Act as requiring a warrant to be obtained from a magistrate’s court in respect of a detainee without the detainee appearing before the magistrate in person. This interpretation is inconsistent with sections 12(1) and 35(1)(d) of the Constitution.
9 Sections 34(1)(b) and (d) can be read to be consistent with sections 35(2)(d) and 12(1) of the Constitution to require that a detainee appears in person before a magistrate’s court determining whether to grant a warrant. In the alternative, these provisions are inconsistent with the provisions of the Constitution.
10 The Department is unable to provide justification for the Act’s limitation of the rights of detained persons.
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11 Sections 34(1)(b) and (d) of the Act are therefore constitutionally invalid. In order to ensure that the rights of vulnerable detainees are protected, it is appropriate, just and equitable in the circumstances for this Court to grant a mandamus and structural relief and to confirm the constitutional invalidity of those sections.
AUTHORITIES ON WHICH PARTICULAR EMPHASIS WILL BE PLACED
1 Minister of Home Affairs v Rahim and Others 2016 (3) SA 218 (CC).
2 De Lange v Smuts NO and Others 1998 (3) SA 785 CC.
3 Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women's Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC).
4 Minister of Home Affairs and Others v Somali Association of South Africa and Another 2015 (3) SA 545 (SCA).
Steven Budlender Nick Ferreira Jatheen Bhima Counsel for the Applicant Chambers
Johannesburg 22 July 2016
