Rahim v The Minister of Home Affairs

The fifteen appellants, fourteen Bangladeshi nationals and one Ghanaian national, were asylum seekers who had been issued with asylum seeker permits under s 22 of the Refugees Act 130 of 1998. They were arrested during 2010 by officials of the Department of Home Affairs after their asylum applications and appeals were regarded as finalised, and they were treated as illegal foreigners. They were detained for varying periods (between 4 and 35 days) at police stations, prisons, and in some instances at the Lindela Deportation Facility, pending deportation in terms of s 34(1) of the Immigration Act 13 of 2002. The appellants sued for damages, alleging unlawful arrest and detention, contending inter alia that their detention did not comply with s 34(1) because there was no evidence that the Director-General of Home Affairs had determined the manner and place of their detention as required by the Act. The High Court dismissed their claims, and they appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside and replaced with an order declaring the detention of each appellant unlawful. The Minister of Home Affairs was ordered to pay damages to each appellant in amounts ranging from R3 000 to R25 000, together with interest, and to pay the appellants’ costs, including the costs of two counsel.

The case affirms the principle of legality in the context of immigration detention and clarifies that detention pending deportation under s 34(1) of the Immigration Act is lawful only if the Director-General has determined the manner and place of detention. It reinforces the requirement that immigration detention must comply with constitutional norms and international human rights standards, particularly the separation of migrants from the general prison population.