Lawyers for Human Rights and Another v Minister of Home Affairs and Others

Lawyers for Human Rights (a public interest NGO) and Ann Francis Eveleth, a foreign national, sought confirmation of a High Court order declaring parts of section 34 of the Immigration Act 13 of 2002 unconstitutional. Section 34 regulates the arrest, detention and deportation of ‘illegal foreigners’. The challenge focused particularly on sections 34(8) and (9), which deal with the detention of alleged illegal foreigners at ports of entry (such as airports and seaports) pending removal, and section 34(2), which limits detention without judicial oversight to 48 hours. The High Court held that section 34(8) allowed arbitrary detention based solely on an immigration officer’s assertion and thus infringed the right to freedom and security of the person, and it declared the provision unconstitutional. The Minister of Home Affairs appealed to the Constitutional Court.

The appeal by the Minister of Home Affairs was upheld. The High Court’s declaration of constitutional invalidity in respect of sections 34(8) and 34(2) of the Immigration Act was set aside. The application for confirmation of invalidity was dismissed.

This case is significant for affirming that core constitutional rights to freedom, security of the person, and lawful detention apply to all people physically present in South Africa, including foreign nationals at ports of entry. It also clarifies public interest standing under section 38(d) of the Constitution and establishes an important interpretive approach to immigration legislation, requiring it to be read consistently with constitutional safeguards.