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Lawyers for Human Rights welcomes ConCourt ruling on Motsoaledi

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Lawyers for Human Rights has welcomed the Constitutional Court judgment that held Home Affairs Minister Aaron Motsoaledi and the Director-General personally liable for failure to enact corrective legislation for parts of the Immigration Act.

The apex court ruled on an ex-parte application (an application made by a litigant without notice to the other party) to revive a 2017 court order that declared parts of the Immigration Act invalid and gave Parliament 24 months to remedy the constitutional defects.

So far, Parliament has failed to remedy the defects and the period of suspension of invalidity expired on 29 June 2019.

The apex court found the Act did not adequately protect the rights of people who were to be deported.

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

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

Head of the Penal Reform Programme at Lawyers for Human Rights, Nabeelah Mia says, “The judgment has enforced that after those 48 hours, at the 30-day mark, they have to be brought in again for court for judicial oversight, and 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 that is effecting the detention.”

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. Justice Leona Theron, delivering the judgment, says, “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. 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.

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