illegal immigrants is afrophobic and has a dangerous effect on the sentiment toward
foreign nationals in South Africa. We found the SAPS, SANDF and DHA frequently
failed to inform arrested individuals of their rights. The procedure for informing one that
they have been found to be illegal and will be deported unless they chose to contest this
deportation was handled in a very inconsistent manner. Corruption and harassment at
the time of arrest also appear to be occurring nationally.
“The way the police treat the people when they conduct the work it’s not in a
humanitarian way. So many human rights are being violated; the whole concept
of respect is lost.”
In their response to a list of questions sent to the SAPS, the latter noted that “the DHA
have a mandate to conduct immigration raids on “illegal” immigrants”. The police just
assist with the process. Their policy is to arrest and refer to DHA, “anyone who does not
have legal documents to be in the country.” If one is not carrying their documentation
with them, “Officers are supposed to use discretion in deciding to detain people, and are
mandated to do so in favour of liberty.”39 Our research, as demonstrated below,
revealed several inconsistencies
between legislation and reality.
Graph 2 demonstrates the various types of documentation respondents had with them at the time
of arrest.
i. Rights
The person has to be told that they have all the rights outlined under the Core Principles
of Applicable Law when they are arrested. The arresting officers must tell the person
about their rights in a language that the person understands (unless impractical or
unreasonable) (Section 34(1)(c). Findings from this study reflect that a shocking 90% of
respondents (200 people) were not informed of any of their rights at the time of arrest.
39
South African Immigration Act.
22
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