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CASE NOTE: EX PARTE MINISTER OF HOME AFFAIRS AND ANOTHER

Issued by Alfred Mahkuntsu on behalf of the FW de Klerk Foundation on 11/10/2024

 

Introduction:

In a judgment handed down on 30 October 2023 the Constitutional Court looked at whether it could revive a law’s suspension for unconstitutionality if Parliament fails to amend the law before the suspension expires. This case note will look at the facts, issues and the applicable law the Court referred to. It will then look at the Court’s application of said law to the facts and issues at hand to explain why the Court reached the conclusion it did.

 

FACTS:

The Minister of Home Affairs and the Director-General of the Department of Home Affairs approached the Constitutional Court on an urgent basis. This followed after the Court had previously declared sections 34(1)(b) and (d) of the Immigration Act 13, 2002 unconstitutional in June 2017. These sections of the Immigration Act allowed officers to arrest illegal foreigners without automatic judicial review and without the detainee appearing in person before a court. The Constitutional Court found these sections unconstitutional, as they violated the rights to freedom and security of a person (section 12(1)) and the right to a fair trial (section 35(2)). The Court mandated Parliament to fix the legislation within 24 months. However, Parliament failed to meet this deadline, leading to confusion and inconsistent application of the law by various courts and officials. By 2023, with no corrective legislation, the Minister and Director-General sought to extend the suspension of the invalidity of these sections for a further two years, in order to allow the Minister, Director-General and Parliament to make the necessary changes to the law. They argued that various external factors, including the COVID-19 pandemic and parliamentary disruptions, contributed to the delay. This application was submitted without notifying the intervening party, Lawyers for Human Rights (“LHR”), which had been involved in the original case.

 

ISSUES:

The key issues in this case included:

  1. Whether the Constitutional Court can revive an expired suspension period?
  2. What are the implications of the expired suspension and how should the Court address the constitutional defects identified in the 2017 ruling?
  3. Whether the Court needs to determine a just and equitable remedy to address the constitutional defects and the harm caused by Parliament’s failure to enact remedial legislation.
  4. Whether the Minister and Director-General should bear the costs personally due to their conduct in the litigation process.

 

APPLICABLE LAW:

The primary legal framework involved includes:

  • Section 172(1)(b) of the Constitution allows the Court to suspend a declaration of invalidity to give Parliament time to enact remedial legislation and also grants the Court power to issue just and equitable remedies.
  • Section 12(1) guarantees the right to freedom and security of a person and the state must protect the rights to freedom and security of individuals.
  • Section 35(2)(d) guarantees the right to a fair trial which protects individuals from arbitrary detention.
  • Sections 34(1)(b) and (d) of the Immigration Act 13 of 2002.
  • Economic Freedom Fighters v Speaker of the National Assembly [2017] ZACC 47: This case affirms the wide scope of the Court’s power to grant just and equitable remedies, allowing the Court to go beyond the prayers in the notice of motion to resolve the core constitutional issues.
  • Ex Parte Minister of Social Development [2006] ZACC 3: The Court held that after the expiration of a suspension period, it no longer has the power to extend or revive it. The provision becomes invalid and the Court cannot resuscitate expired laws.
  • South African Social Security Agency v Minister of Social Development (Corruption Watch (NPC) RF Amicus Curiae) [2018] ZACC 26: The Court stated that in cases where public officials conduct litigation in bad faith or with gross negligence, they can be personally liable for legal costs.

 

APPLICATION OF THE LAW:

 1. Whether the Constitutional Court can revive an expired suspension period?

The Court ruled that it could not revive the expired suspension period of the 2017 order. Once a suspension of a declaration of invalidity lapses, the Court’s power to extend it ends. The Court cited the case of the Ex Parte Minister of Social Development [2006] ZACC 3, where it was held that the Constitution grants no power to revive laws that have already become invalid. Therefore, the Minister’s and Director-General’s request for a two-year extension could not be granted under the law.

 2. What are the implications of the expired suspension and how should the Court address the constitutional defects identified in the 2017 ruling?

The implication of the expired suspension meant that sections 34(1)(b) and (d) of the Immigration Act became invalid. While the Court could extend a suspension period before it expires, it has no power to extend the suspension after its expiry. This situation resulted in a range of harms. Some courts began releasing detained illegal foreigners after 30 days due to the absence of lawful procedures, while others detained individuals beyond the 30 days without a court appearance, violating constitutional rights.

To address the above and the harms caused by Parliament’s failure, the Constitutional Court exercised its powers under section 172(1)(b) of the Constitution, to craft an interim order that would remain in effect until Parliament enacts remedial legislation. The Court could not revive the invalidated provisions, but provided a just and equitable remedy by amplifying the previous 2017 order.

 3. Whether the Court needs to determine a just and equitable remedy to address the constitutional defects and the harm caused by Parliament’s failure to enact remedial legislation.

The Constitutional Court reaffirmed that sections 34(1)(b) and (d) of the Immigration Act were unconstitutional, because they violated the rights to freedom and security (section 12(1)) and the right to a fair trial (section 35(2)). The Court emphasised the necessity for legal procedures to safeguard the rights of individuals, particularly illegal foreigners, ensuring they are brought before a court within 48 hours of arrest. In its argument, the Court referenced other previous judgments such as the case of Dawood v Minister of Home Affairs 2000 (8) BCLR 837 (CC), which emphasised the importance of the judiciary in protecting individual rights against unlawful detention.

The Court used its power under section 172(1)(b) of the Constitution to provide a just and equitable remedy to manage the situation caused by the Parliament’s failure, namely, crafting an interim order that would remain in effect until Parliament enacts remedial legislation. By doing so it strengthened the previous order, ensuring that illegal foreigners are afforded certain rights during detention, such as being brought before a court within 48 hours and having the opportunity to make representations.

 4. Whether the Minister and Director-General should bear the costs personally due to their conduct in the litigation process.

The Court found that the Minister and Director-General had acted improperly by not informing the courts of the expired suspension period and by not involving LHR in the legal process. Consequently, the Court ordered that the Minister be personally liable for 10% of LHR’s costs, while the Director-General was to pay 25%.

 

CONCLUSION:

The Constitutional Court denied the applicants’ request to revive the expired suspension period. Instead, the Court crafted a new order to temporarily manage the constitutional defects until Parliament passes the required legislation. The Court’s order emphasised the importance of protecting the rights of detained illegal foreigners, mandating that detainees be brought before a court within 48 hours of arrest and be allowed to make representations during their detention reviews.

The FW de Klerk Foundation Annual Conference

The FW de Klerk Foundation Annual Conference – hosted in conjunction with the Konrad-Adenauer-Stiftung – took place on 31 January 2025. The theme of this year’s conference is: “South Africa’s Position in the World Today”.
 

 Esteemed speakers include Ambassador Andreas Peschke (Ambassador of the Federal Republic of Germany); Magda Wierzycka (CEO of Sygnia); Dr Harlan Cloete (Local Governance and Public Leadership – Research Fellow) and Johan “Rassie” Erasmus (Springbok Coach).