Lawyers for Human Rights v Minister of Home Affairs and Others

Lawyers for Human Rights, a public interest NGO, challenged the constitutionality of sections 34(1)(b) and (d) of the Immigration Act 13 of 2002. These provisions permitted the arrest and detention of so-called ‘illegal foreigners’ for purposes of deportation for up to 30 days, extendable to a maximum of 120 days, without automatic judicial oversight and without requiring the detainee to appear in person before a court when detention was extended. The applicant’s challenge was based on its extensive experience litigating on behalf of detained foreigners, revealing systemic failures including prolonged detention, lack of information about rights, inability to access courts, and detention beyond statutory limits. The High Court declared the provisions unconstitutional. The matter came before the Constitutional Court on appeal and for confirmation of invalidity.

The appeal was dismissed. Sections 34(1)(b) and (d) of the Immigration Act were declared unconstitutional and invalid. The declaration of invalidity was suspended for 24 months to allow Parliament to enact corrective legislation. Interim relief was ordered requiring that all detained illegal foreigners be brought before a court in person within 48 hours of arrest. The Minister of Home Affairs and the Director-General were ordered to report on compliance and to pay costs.

This case is a leading authority on the constitutional limits of administrative detention in South Africa. It affirms that immigration detention is subject to strict judicial oversight and that non-citizens enjoy core constitutional protections to liberty and dignity. The judgment strengthens safeguards against arbitrary detention, reinforces the principle of automatic judicial control over deprivation of liberty, and has had a significant impact on immigration enforcement practices.