South Africa: Constitutional Court hearing – Minister of Home Affairs v Abdul Rahim & Others

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25 November 2015 – On 26 November 2015 at 10h00 the Constitutional Court will hear an application for leave to appeal against a judgment and order of the Supreme Court of Appeal concerning the correct interpretation of section 34(1) of the Immigration Act 13 (the Act) which provides that illegal foreigners must be detained in places determined by the Director‑General of Home Affairs (Director-General).  The respondents have also cross-appealed on the award of damages by the Supreme Court of Appeal.

The respondents, who are all foreign nationals were immediately arrested and detained for deportation after their temporary asylum seeker permits expired and their application for asylum were rejected and their appeals were unsuccessful.  They were detained in various facilities including St. Albans and North End Prisons, KwaZakhele and New Brighton Police stations in Port Elizabeth pending deportation.  They remained at these places of detention for varying periods, ranging from four days to thirty-five days, before they were released.

The respondents instituted action against the Minister of Home Affairs, the applicant in the Eastern Cape High Court (High Court) for damages for being detained in places which had not been determined by the Director-General as required by section 34(1) of the Act.  The High Court found, on an interpretation of section 34(1) of the Act, that places used for the detention of illegal foreign nationals did not have to be determined by the Director-General and that all prisons and police detention facilities could lawfully be used for this purpose.

The Supreme Court of Appeal found that in terms of section 34(1) the places in which illegal foreigners are detained had to be expressly determined by the Director-General. As a result of the absence of evidence that such determination had been made, the Court found that the detention of the respondents was unlawful.  Consequently, it awarded damages ranging from R3 000 to R25 000 per individual depending the duration of detention.

In this Court, the Minister of Home Affairs submits that section 34(1) of the Act does not impose an obligation on the Director-General to determine specific and separate places of detention of illegal foreigners.  He argues that the object of the section is to empower the Director-General to ensure that illegal foreigners are detained only in state-run or controlled facilities.  He alternatively argues that should it be held that section 34(1) of the Act imposes an obligation on the Director-General to determine specific and separate places of detention of illegal foreigners, the detention of the respondents absent such a determination, nonetheless, cannot give rise to a claim for damages.

The respondents contend that illegal foreigners must be detained at places determined by the Director-General under section 34(1).  With regard to delictual claim and the exercise of discretion regarding the award of damages, the respondents submit that this Court must consider various factors such as: the nature and seriousness of the infringement of their rights and the effect on them, the duration of deprivation of liberty, the place of their incarceration, the absence of an apology from the applicant, the high value of the rights to physical liberty and dignity, the punitive function of this claim, the recent tendency by Courts to award higher damages.

The People Against Suffering, Oppression and Poverty, represented by the Legal Resources Centre, has been admitted as a friend of the Court and submits that in determining the correct interpretation of section 34(1), this Court must consider international law and prefer an interpretation that promotes the values of equality, human dignity and freedom.  It further submits that the current international legal norm prefers the detention of refugees and asylum seekers in facilities away from prison population, a fact which should guide this Court in its interpretation of the provision.