Question NW188 to the Minister of Home Affairs

Reply:

There have been no releases of persons whose detention was confirmed because of issues with section 34(1)(b) and (d). The judgement in Lawyers for Human Rights vs Minister of Home Affairs and others CCT 38/16 on 29 June 2017, ordered the amendment of s34(1)(b) and (d) of the Immigration Act, 2002 (Act 13 of 2002) within 24 months of the order on 29 June 2019. However, all the magistrates’ courts continued to confirm the detention of illegal immigrants for deportation purposes beyond this date.

The non-application of section 34(1)(b) in some magistrates’ courts in the country commenced in February 2022. In ensuring the continuation of law enforcement from that date onwards, the illegal immigrants were charged criminally, as per the provisions of section 49(1) of the Immigration Act, 2002.

If found guilty, and upon serving a sentence of imprisonment or paying a fine, the deportation would be processed within 48 hours of release by an Immigration Officer. In instances where this was not possible within the stipulated timeframe, the illegal immigrant would be issued with an Order to Leave the Country, and thus self-deport.

Therefore, once the detention of an illegal immigrant has been confirmed as per section 34(1)(b), the only basis for not deporting the person would be that they expressed an intention to apply for asylum while awaiting deportation. Alternatively, the person’s legal representation would lodge an application in the High Court with jurisdiction, to review the final rejection of the asylum appeal in terms of Rule 53 of the Rules of Court.

END