Constitutional Court Dismayed at State's Failure to Amend Immigration Act

The Constitutional Court, South Africa's highest judicial body, has voiced its disappointment at the State's inaction towards amending the country's Immigration Act. This comes more than six years after the original order to amend the legislation was passed.

Back in 2017, the Constitutional Court declared several parts of the Immigration Act as unconstitutional. These include a section failing to stipulate that an undocumented foreigner, detained and slated for deportation, should appear before a court within 48 hours in alignment with existing laws for other accused persons.

Despite the order being suspended for two years to allow Parliament to amend the unconstitutional clauses, the changes remain unrealised. This lack of action has created confusion regarding the existing laws, forcing the Department of Home Affairs to revert to the Constitutional Court earlier in May to seek revival of 2017's suspended order.

The Constitutional Court, while acknowledging the need for clarity and certainty, said it could not extend a suspension period post its expiry. Thus, it issued an auxiliary order outlining the process to adopt pending enactment of corrective legislation.

The aftermath resulting from this bureaucratic delay has proven costly for the Home Affairs Minister and director-general. They are now personally responsible for covering the litigation costs, termed "shambolic" by the court, where Lawyers for Human Rights, the applicant in the initial case, was not even included. Adding to the chiding, the Court rejected the director-general's reasons for missing the original deadline as "wholly unsustainable," citing excuses such as the COVID-19 pandemic and 2020's Parliament fire.

As there is no indication of when the said amendments will be made, the situation remains in flux at the moment.