Key rules under the Constitution and Promotion of Administration of Justice
Act (PAJA):
i.
The processes of arrest, detention and deportation must respect individuals’
rights and be fair, lawful, and reasonable.
ii.
Detainees have the right to:
Be told in writing that their rights are impaired (explain) by administrative
action,
Be promptly informed why they are being detained and that they have a
right to consult with any legal professional they choose,
Challenge the legality of their detention in person,
Have their human dignity respected at all times, including the provision of
adequate accommodations, nutrition, reading material, and medical
treatment,
Communicate with and have visits from a spouse, partner, next of kin,
religious counsellor, or medical professional.
Other legal provisions:
South African law does not require the detention of asylum seekers,
refugees or illegal foreigners (Refugees Act 130 of 1998, South African
Immigration Act).
Officers are supposed to use discretion in deciding to detain people, and
are mandated to do so in favour of liberty (South African Immigration Act).
The Chilren’s Act requires that unaccompanied minors, even if
undocumented or illegally in the country, be placed in temporary places of
safety – not detention centers like Lindela (Centre for Child Law and
Another v Minister of Home Affairs and Other 2005 (6) SA).
The DHA is legally required to consider asylum claims of a family as a
whole to prevent families from being torn apart.
“I have to get a job and raise my children even if it means I have to get arrested.”
Arrests and Initial Detention
The arrest and initial detention process has a pivotal effect on the deportation process
as a whole. How thoroughly and justly the law is administered at this stage influences
the number of wrongly incarcerated detainees. This in turn would have an impact on the
costs of detention and deportation and increase the number of people who would be
eligible to file civil claims against the state. If it could accurately be said that all
detainees have been verified and given the opportunity to appeal their arrest, it would
reduce the pressure and more importantly, cost of the detention and deportation
process. The research pertaining to the arrests and initial detention of alleged illegal
immigrants revealed that this was not the case. Alarming trends of disregard for the law
was observed in the verification/screening process. The method of identifying so called
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