ConCourt holds Minister liable for failure to enact corrective law

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The Constitutional Court has held the Home Affairs Minister and the Director-General personally liable for failure to enact corrective legislation to parts of the Immigration Act.

The apex court delivered judgment on Monday in an ex-paret application to revive a 2017 order of the court, which declared parts of the Immigration Act invalid and gave Parliament 24 months to remedy the constitutional defects.

To date, Parliament has failed to correct the defects and the period of suspension of invalidity expired on 29 June 2019.

The apex court says the conduct of the Home Affairs officials was deserving of a punitive cost order.
As a result, it slapped the Home Affairs Minister with a 10% personal cost order while his Director-General was held 25% liable.

This after six years have passed without the enactment of corrective legislation concerning the Immigration Act to the extent that it did not adequately protect the rights of persons detained for purposes of deportation under the Act, causing confusion and uncertainty in the law.

Constitutional Court’s Justice Leona Theron says, “Personal cost orders against public officials who flout their constitutional obligations serve to vindicate the constitution and hold such officials to account, the minister is ultimately accountable for the fulfilment of his dept’s objectives and for the actions or failures of his officials…. assigned to them”

Video: Home Affairs Minister Dr Aaron Motsoaledi slapped with a 10% personal cost order

Home Affairs turned to the Constitutional Court, seeking a “revival” of the 2017 order -after the fact – for a further period of two years to allow Parliament to correct the defects as ordered in the 2017 judgment.
However, the court held that this was not possible.

Theron adds, “The Constitutional Court holds that while it cannot revive statutory provisions after the expiry of the suspension period, it can in terms of section 172 (1)(b) of the Constitution order … just and equitable relief to supplement the 2017 order.”

As a result, the court ordered, among other things, that Parliament be afforded 12 months to remedy the defects.
Pending this and if parliament fails to fulfil the task, the court has further provided clarity to detainees, who are often detained for long periods, in the supplemented order which sets the standard in law.

The clarification was welcomed by Lawyers for Human Rights. Head of the Penal Reform Programme, Nabeelah Mia says “The judgment has enforced that after that 48 hours, at the 30-day mark, they have to be brought in again for court for judicial oversight then if they are detained for a further period of time they have to be brought before again the judicial officer and the idea is that at every stage there is accountability…”

The Ministry of Home Affairs was not immediately available for comment.