whether or not to detain someone, and because of the harmful effects of detention,
officers must do so in favour of liberty.58
Our research showed that in fact the opposite is the case: that officers’ discretion is in
favour of incarceration and that where documentation is not immediately available to
prove legitimate status, the suspected illegal is automatically detained.
We interviewed seven refugees or asylum seekers in the Western Cape and Limpopo
who had been deported. Five were arrested while in possession of their documents.
None of these respondents were informed of their rights at the time of the arrest and
only three were given a form to sign, but it was not translated for any of them.
In February 2012, 52 Congolese people deported from Lindela reported abuse, citing
that they were deprived of food and water, threatened, beaten and interrogated upon
returning to the DRC.59 There is growing concern among Congolese in Cape Town and
Johannesburg that deportation to the DRC of political refugees can be their death
sentence.
ii. Special Position of Zimbabwean Migrants: Deportations during Moratorium
In April of 2009, in response to xenophobic violence that plagued South Africa in 2008,
a moratorium on the deportation of Zimbabweans was implemented. Of the
Zimbabweans we interviewed, 41 were deported between April 2009 and October 2011,
despite the moratorium on deportation of Zimbabweans. While this was significantly
less than the numbers both after and before, it illustrates a distinct lack of respect for
the law and human rights that is so endemic in this system.
iii. Deportation despite a Court Order for Release
In addition, deportations occur even when the courts have ordered their release. It has
not been possible to quantify how often deportations occur despite the issuance of a
court order for release, but there are numerous examples of illegal deportation. Larry
Mzamo, a private immigration lawyer tells of two of his clients who were given court
orders for their release, but when the lawyer went to meet them as they were to be
released from Lindela, they were not there. No-one from Lindela would give information
on their whereabouts and the lawyer was left to assume that they had either been
suspiciously released and rearrested, or had already been deported. He further
explained that few of his clients in this situation can afford this initial cost to take the
DHA to court if their court order is ignored, which makes it very difficult to challenge the
DHA in court. He went on to say they are “frustrated as practitioners,” and describes
the DHA as a “law unto themselves… with no respect for rule of law.”60
vi.
Detainees paying to be deported
58
South African Immigration Act; upheld in Ulde v Minister of Home Affairs and others and Jeebhai v
Minister of Home Affairs and others,
59
Tolsi, Niren. “South Africa ignores deportee torture claims.” 9 March 2012.
http://mg.co.za/article/2012-03-09-sa-ignores-deportee-torture-claims.
60
Taken from interview with researcher
35
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