Immigrants contest lock-up in cop shop
Source: Natasha Prince Cape Argus, 10/08/2015
Cape Town - A Western Cape Cape High Court judge is facing a legal
conundrum after three illegal immigrants arrested during a national
clampdown Operation Fiela turned to the courts to test the
lawfulness of their detention.
Judge Dennis Davis found himself on the verge of "pulling out his
hair" on Friday when he was faced with arguments for and against the
release of the three Zimbabweans.
Judge Davis is expected to conduct an inspection-in-loco at the
Milnerton police station today to ascertain the conditions under which
the illegal immigrants are being kept before he makes a formal
judgment on the matter.
Judge Davis will weigh up competing arguments the rights of illegal
immigrants in terms of the Immigration Act versus the Department of
Home Affairs` (DHA) obligation to enforce the law.
It was argued in court that the Milnerton police station does not fit
the criteria to be considered a detention facility for illegal
Judge Davis is to investigate whether the station "allows for
exercise, adequate ventilation and provides sufficient nutrition".
The Zimbabweans Lloyd Muchatisi, arrested on July 2, and Febbie
Chidhakwa and Patience Mupanduki, arrested on July 16, brought the
urgent application before the court. They were arrested during a joint
operation by police and the Department of Home Affairs.
They are arguing that they were arrested unlawfully without warrants
of arrest, and want to be released or have their incarceration
confirmed by a court.
They say that the conditions in which they are being held are not
acceptable in terms of the law and that signatures on warning letters
received, were forged.
Advocate Fungai Mgcini Kuzinya, representing the three Zimbabweans,
said he was not attacking the constitutionality of the Immigration
Act, which says illegal immigrants can be held for 30 days.
However, he argued that after his clients were arrested and read their
constitutional rights, they should have been brought before a court
within 48 hours in terms of the law.
"The applicants were arrested in terms of the Immigration Act, but
informed of their rights in terms of the constitution," Kuzinya said.
He also raised questions about the warning letters issued and the
signatures on the letters. "The differences are glaring. It does not
take an expert to notice that," Kuzinya said.
Kuzinya argued that there had been non-compliance, and therefore his
clients were being illegally held and should be released.
He said the conditions in which they were held were not in compliance
with minimum prescribed standards protecting their dignity and human
rights in terms of the Immigration Act.
Advocate Lee Anne de laHunt, an amicus curie (friend of the court)
from Lawyers for Human Rights, noted that the Department of Home
Affairs had admitted that the Milnerton police station was not within
the control of the director general.
De laHunt said the detention of the trio at the Milnerton police
station was "unlawful", because the station does not meet the
prescribed criteria for a detention centre.
She said the only "proper detention facility" for illegal immigrants
was Lindela in Krugersdorp.
Advocate Hayley Slingers, for the Department of Home Affairs, said the
illegal immigrants requested to be held at Milnerton. The alternative
was to house them in Pollsmoor Prison`s awaiting trial section.
Judge Davis interjected, saying Pollsmoor would definitely not meet
the prescribed requirements.
"But what`s the solution? Do you release illegal immigrants who admit
they are illegal?" argued Slingers.
She said the only solution was Pollsmoor to which Judge Davis replied:
"Well I can`t put them in Pollsmoor, it`s illegal."
Slingers argued: "They are here illegally and they intend to stay
illegally they`ve been working here illegally."
Judge Davis replied: "They`re human beings and must be treated as
Judge Davis ordered that the three be held at the Milnerton police
station on condition that the station meets the minimum requirements
in terms of the Immigration Act, until the three are transported to
the Lindela detention facility.