Undocumented Foreigner Awarded R1 Million in Damages After Home Affairs’ Legal Missteps

A Mthatha-based herbalist, despite admitting her illegal status in South Africa, won a R1 million damages case against Home Affairs officials. The Eastern Cape High Court found that her detention violated her legal rights due to the officials’ ignorance of the law. In a landmark ruling, the Eastern Cape High Court awarded R1 million in damages to an undocumented foreigner who was unlawfully detained by the Department of Home Affairs. The Mthatha-based herbalist, who admitted to being illegally in South Africa, successfully argued that her rights were violated during her arrest and subsequent detention, as Home Affairs officials mishandled her case due to a lack of understanding of the legal provisions governing such situations.

On 18 November 2022, the woman was arrested in the Mthatha central business district during an operation targeting illegal foreigners. She was unable to produce a visa or permit, resulting in her immediate detention. However, despite her admission of guilt and payment of a R1,000 fine, she was held for an additional month under deplorable conditions at the Mthatha Central Police Station.

The plaintiff argued that her extended detention was unlawful, as she was not brought before a court within the legally required 48 hours after her arrest, nor was she provided with legal representation. Her situation worsened when the Home Affairs officials failed to confirm her detention through the proper judicial channels, an oversight that would ultimately cost the department dearly.

Home Affairs officials testified that they believed they were acting within their rights, claiming that the woman’s detention had been properly authorised and that she was informed of her pending deportation. However, the court found that the officials had fallen short in fulfilling their legal obligations, including failing to bring the plaintiff before a magistrate to confirm her detention as required by law.

The legal missteps were compounded by the officials’ apparent ignorance of the Constitutional Court’s 2017 ruling, which had declared parts of the Immigration Act unconstitutional. The ruling required that any illegal foreigner detained must be brought before a court within 48 hours for a decision on whether continued detention was justified. The failure of Parliament to amend the law within the 24-month suspension period granted by the court led to further confusion and misapplication of the law by Home Affairs officials.

Judge Lindiwe Risi, presiding over the case, emphasised that the immigration officers and the court should have been fully aware of their legal responsibilities. She noted that the Constitutional Court’s ruling was clear in its intent to protect the rights of detainees, ensuring they were not held without trial or judicial oversight.

The judge further clarified that bringing a detainee to court is not merely a procedural formality but a crucial step to safeguard their rights. The court ruled in favor of the plaintiff, highlighting the importance of upholding the rule of law, even in cases involving undocumented individuals.

This ruling serves as a stark reminder to government officials of their duty to act within the boundaries of the law, and it underscores the necessity of proper legal training and awareness among those responsible for enforcing immigration laws in South Africa.