Please note that this article is an extract from the Legal Resource Centre’s Annual Report 2012
On 21 February 2012, the LRC re-launched its Immigration Project when it received reports of continued unlawful conduct on the part of immigration officials at the Lindela Repatriation Centre in Krugersdorp, Gauteng. Lindela is the detention facility established by the Director-General in terms of the Immigration Act, 13 of 2002. Section 34(1)(d) of the Act states that no person may be detained in excess of 30 calendar days without a warrant and that such detention may only be extended on warrant for a period not exceeding 120 days. Furthermore, section 28(1)(g) of the Constitution states that a detained child may not be kept with detained persons over the age of 18.
To date, the Immigration Project has successfully secured the release of 29 persons detained in contravention of the Immigration Act and of the Constitution. In the light of continuing consultations at Lindela, the LRC has reason to believe that non-compliance with and abuse of the Immigration Act has become widespread and systematic within the Department of Home Affairs (DHA). The following cases further illustrate our work in relation to unlawful detentions.
On 14 March 2011, the South Gauteng High Court granted the immediate release of Jery Kaculando, an Angolan national, who has been detained as an illegal foreigner in South Africa for 132 days without a warrant. Mr Kaculando was arrested at the border post whilst trying to enter Zimbabwe on his way home to Mushiko, Angola. Dissatisfied with the unwillingness of South African immigration officials to assist him in obtaining a temporary residence permit, he had decided to leave South Africa. However, immigration officials detained Mr Kaculando, first at the Waterport Police Station in Limpopo and then at Lindela. He was released after 132 days in detention and ordered to leave South Africa within 7 days.
On 15 March 2012, the South Gauteng High Court granted the immediate release of Idowu Lateef Sikuola, a Nigerian national, who had been unlawfully detained in South Africa for 114 days whilst in possession of a valid work permit. Mr Sikuola, a computer science teacher, was arrested in King Williams Town, in the Eastern Cape, whilst involved in a labour dispute with the Department of Education. During the 13-hour journey to Lindela, he was only afforded a five minute toilet break and was not given any food. Affixed to his passport is a quota work permit valid until February 2014. The judge sitting in the urgent court stated that ‘the validity of his permit alone was grounds for his release’. The judge further questioned the advocate acting on behalf of the Minister of Home Affairs as to why the applicant was arrested in the first place.
On 29 March 2012, the South Gauteng High Court ordered the immediate release of 22 foreign nationals who were being unlawfully detained in South Africa for periods in excess of 120 days. Of the 22 applicants, some had been arrested as early as 3 May 2011. The initial application was set down for hearing on 27 March 2012. The matter was then stood down until Thursday 29 March 2012 in order for the DHA to verify which of the 22 applicants was still in detention.
However, on 28 March 2012, the LRC had received reports that one of the applicants was going to be deported early on Thursday morning prior to his matter being heard in court. After numerous attempts to resolve the matter, the LRC was informed by a senior immigration official at Lindela that ‘no deportations were taking place’. Subsequent events led the LRC to believe otherwise. The LRC had to intervene on more than one occasion when we learnt that our clients were about to be deported. Fortunately, after judgment was given favouring our clients, all 22 applicants were released.
Working in collaboration with Lawyers for Human Rights, on 3 May 2012, the LRC consulted with three minors being detained at Lindela in contravention of the Constitution and section 139 of the Children’s Act, 30 of 2005. Urgent proceedings were launched in the South Gauteng High Court but were withdrawn after an agreement was reached. The children were removed from Lindela and placed in a temporary place of safety.