Johannesburg – South Africa’s Department of Home Affairs is moving to amend its immigration laws, stirring public debate over aspects of the Immigration Amendment Bill, 2024. The bill is currently before the National Council of Provinces and open for public comment.
The changes follow a 2017 Constitutional Court ruling that sections of the Immigration Act were unconstitutional. The court found that detainees were not informed of their right to legal representation, were denied the chance to appear in court, and faced other procedural issues. The ruling required that any illegal foreigner detained under the Act be brought before a court within 48 hours. In 2023, the court added that detainees must appear in person when courts consider extending detention beyond 30 days, introducing the “interests of justice” criterion to guide officials and judges.
The proposed amendments aim to overhaul arrest and detention processes for undocumented foreigners. Law firms such as Cliffe Dekker Hofmeyr noted that stakeholders had submitted a wide range of comments, highlighting both concerns and suggestions for improvements.
Parliament’s Select Committee on Security and Justice held a public hearing on the bill. The Law Society of South Africa and the Helen Suzman Foundation warned that the 48-hour requirement could overwhelm lower courts, especially in busy areas like Musina and Lindela. They recommended specialised immigration courts or designated magistrates to handle these cases.
Other submissions called for broader reforms, including digitalisation and modernisation of immigration systems. Several stakeholders also stressed that procedural safeguards for detainees must protect constitutional rights. Some criticised the term “interests of justice” as unclear, which could affect enforcement.
Home Affairs said some submissions fell outside the bill’s scope and would be addressed in its upcoming White Paper on Citizenship, Immigration and Refugee Protection. The department confirmed that individuals facing deportation would retain full constitutional rights, including legal representation and interpretation services.
Parliament and Home Affairs will review public comments before finalising the bill. Employers and stakeholders are advised to update immigration compliance processes in preparation for the new regulations.
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