Minister of Home Affairs v Rahim and Others

The respondents were Bangladeshi nationals (except the eleventh respondent who was from Ghana) who applied for asylum in South Africa under the Refugees Act. They were granted asylum-seeker permits which were extended from time to time, but ultimately their asylum applications were rejected and their appeals failed. After failing to depart South Africa, the respondents were arrested and detained as illegal foreigners under section 34(1) of the Immigration Act 13 of 2002 pending deportation. They were detained for various periods ranging from 4 to 35 days in prisons and police stations. At the time of their detention, the Director-General of the Department of Home Affairs had not determined any places for the detention of illegal foreigners as required by section 34(1) of the Immigration Act. The respondents sued the Minister of Home Affairs for damages, claiming their detention was unlawful because they were detained at places not determined by the Director-General.

• Whether section 34(1) of the Immigration Act 13 of 2002 requires the Director-General to pertinently determine specific places for the detention of illegal foreigners
• Whether detention of illegal foreigners at places not determined by the Director-General constitutes unlawful detention
• Whether breach of section 34(1) gives rise to a delictual claim for damages
• Whether the detention in prisons and police cells without specific determination was unlawful
• What amount of damages should be awarded for unlawful detention

1. Leave to appeal is granted. 2. Leave to cross-appeal is granted. 3. The appeal is dismissed with costs. 4. The cross-appeal is dismissed. The Supreme Court of Appeal's judgment awarding damages to the respondents for unlawful detention was upheld.

The binding legal principles established are: (1) Section 34(1) of the Immigration Act 13 of 2002 requires the Director-General of Home Affairs to make a pertinent, specific determination of the place or places appropriate for detention of illegal foreigners, not merely to use any facility under state control. (2) The detention of illegal foreigners and the place of detention are inextricably linked - confinement in a place not permitted by law renders the entire detention unlawful. (3) Deprivation of personal liberty is prima facie unlawful and the burden falls on the person causing the deprivation to establish grounds of justification. (4) Breach of section 34(1) by detaining illegal foreigners at places not determined by the Director-General constitutes unlawful detention that is actionable in delict. (5) The test for whether breach of a public duty gives rise to delictual liability depends on legal policy considerations, including whether recognition of a delictual action is necessary to vindicate constitutional rights of vulnerable and marginalized persons who lack other effective remedies. (6) Illegal foreigners, though in the country unlawfully, enjoy constitutional protection under the principles of legality and respect for dignity.

The Court made several non-binding observations: (1) The Court referenced international instruments and norms regarding the treatment of migrants and asylum-seekers (including the International Convention on the Protection of the Rights of All Migrant Workers, resolutions of the Inter-American Commission on Human Rights, and reports of the UN Special Rapporteur) not as binding law but to illustrate the purpose behind requiring the Director-General to determine appropriate detention facilities. (2) The Court noted that illegal foreigners are "amongst the most vulnerable in our society, with no political or social influence over the laws that govern them, often living on the margins of society, without communal support, assistance or influence to ensure compliance with the law by public officials." (3) The Court observed that interdictory relief suggested by the Minister would be "cold comfort" to people unlikely to have access to courts during the time they await expulsion. (4) The Court cited the general principle from Affordable Medicines Trust and Biowatch that where the state fails to fulfill constitutional and statutory obligations, it should bear costs of successful litigants and there should ordinarily be no costs orders against private litigants. (5) The Court noted that "money can never be more than a crude solatium for the deprivation of [liberty]" and that "our courts are not extravagant in compensating the loss."

This case is significant in South African immigration and constitutional law for several reasons: (1) It clarifies that section 34(1) of the Immigration Act requires the Director-General to make a specific, active determination of appropriate places for detention of illegal foreigners, not merely to detain them at any state-controlled facility. (2) It recognizes international norms regarding the treatment of migrants and asylum-seekers as contextually relevant to interpreting immigration legislation. (3) It affirms that illegal foreigners, despite their status, enjoy constitutional protection under the principles of legality and dignity. (4) It establishes that breach of the procedural requirement in section 34(1) renders the entire detention unlawful and actionable in delict. (5) It reinforces the constitutional importance of personal liberty and the prima facie unlawfulness of any deprivation of liberty. (6) It demonstrates the application of legal policy considerations in determining when breach of a public duty gives rise to private delictual liability, particularly where vulnerable and marginalized groups require effective remedies to vindicate their rights. (7) It applies the principle that successful litigants should obtain effective relief, particularly against the state where constitutional rights are violated.