THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
CASE NO: 965/2013
In the matter between:
ABDUL RAHIM

FIRST APPELLANT
HOSSAIN KAMAL

SECOND APPELLANT
ZAKIR HOSSAIN

THIRD APPELLANT
HARUN MOHAMMED

FOURTH APPELLANT
MOHAMMED SALLA UDDIN

FIFTH APPELLANT
ABDUL SHAMOL

SIXTH APPELLANT
MAHBUB ALOM

SEVENTH APPELLANT
TOYOBUR RAHMAN

EIGHTH APPELLANT
SUMAN CHUDHURY

NINTH APPELLANT
MUSTAFI GURRAMAN

TENTH APPELLANT
EUNICE HAYFORD

ELEVENTH APPELLANT
ZAIUR RAHMAN

TWELFTH APPELLANT
MD ALAP

THIRTEENTH APPELLANT
NORUL ALOM

FOURTEENTH APPELLANT
MAHE MINTU

FIFTEENTH APPELLANT

and

THE MINISTER OF HOME AFFAIRS

RESPONDENT

Neutral Citation:
Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA 92 (29 May
2015).
Coram:
Navsa, Majiedt, Mbha & Zondi JJA and Meyer AJA
Heard:

18 May 2015
Delivered:

29 May 2015
Summary:

Detention of illegal foreigners pending deportation in terms of s
34(1) of the Immigration Act 13 of 2002 – illegal foreigners to be detained in a manner
and place determined by the Director-General – absence of evidence concerning such
determination – principle of legality – detentions unlawful.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: The Eastern Cape Division of the High Court, Port Elizabeth (Chetty J
sitting as court of first instance).

The following order is made:

1. The appeal is upheld and the respondent is ordered to pay the appellants‟ costs,
including the costs of two counsel.
2. The order of the court below is substituted by the following order:
„1. The detention of each of the Plaintiffs is declared to have been unlawful.
2. The Defendant is ordered to pay damages to the Plaintiffs as follows:
2.1 To the First Plaintiff an amount of R10 000 together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.2 To the Second Plaintiff an amount of R12 000 together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.3 To the Third Plaintiff an amount of R3 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.4 To the fourth Plaintiff an amount of R6 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.5 To the Fifth Plaintiff an amount of R5 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.6 To the Sixth Plaintiff an amount of R8 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.7 To the Seventh Plaintiff an amount of R20 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;

2.8 To the Eighth Plaintiff an amount of R10 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.9 To the Ninth Plaintiff an amount of R25 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.10 To the tenth Plaintiff an amount of R12 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.11 To the Eleventh Plaintiff an amount of R12 000, together with interest thereon, at
the rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.12 To the Twelfth Plaintiff an amount of R18 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.13 To the Thirteenth Plaintiff an amount of R16 000, together with interest thereon, at
the rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.14 To the Fourteenth Plaintiff an amount of R14 000, together with interest thereon, at
the rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.15 To the Fifteenth Plaintiff an amount of R5 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof.
3. The Defendant is ordered to pay the Plaintiffs‟ costs of suit, including the costs of two
counsel.‟
______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa ADP (Majiedt, Mbha & Zondi JJA and Meyer AJA concurring):

[1] This is an appeal against a judgment of the Eastern Cape Division of the High
Court, Port Elizabeth (Chetty J), in terms of which the court a quo dismissed the claims
of the 15 appellants, all foreign nationals, for damages said to have been sustained as a

result of their alleged unlawful arrest and detention at the instance of officials of the
respondent, the Minister of Home Affairs (the Minister). The appeal is before us with the
leave of the court below.

[2] This case is adjudicated against the following backdrop. South Africa has
kilometre upon kilometre of porous borders which the Department of Home Affairs (the
Department) has difficulty controlling. There is public concern about the illegal influx of
foreigners. Many of our African brothers and sisters and even people, like most of the
appellants, from more distant shores, flock to our country in search of a better life and
economic opportunities. This has caused a degree of animosity to be directed at
foreigners and more recently has led to what has been described as xenophobic attacks
on foreigners. It is vital in this context to affirm that we are a constitutional state
subscribing to the principle of legality, an incident of the rule of law. Our Constitution
demands a normative standard and we must be held bound by it. In adjudicating this
case, sight will not be lost of the logistical and other difficulties that the Department
experiences in dealing with an influx of foreign nationals. At the same time we cannot
lose sight of our constitutional duty to do justice in accordance with constitutional norms.
I turn to deal with the relevant facts and the applicable law.

[3] Fourteen of the appellants are Bangladeshis. The eleventh appellant is
Ghanaian. All of the appellants were asylum seekers who had applied for asylum in
terms of s 21 of the Refugees Act 130 of 1998 (the RA) and had, in terms of s 22(1) of
the RA, been granted an asylum seeker permit. Section 22(1) reads as follows:
„The Refugee Reception Officer must, pending the outcome of an application in terms of section
21(1), issue to the applicant an asylum seeker permit in the prescribed form allowing the
applicant to sojourn in the Republic temporarily, subject to any conditions, determined by the
Standing Committee, which are not in conflict with the Constitution or international law and are
endorsed by the Refugee Receptions Officer on the permit.‟
Section 22(3) of the RA, recognising that the process for finalising such applications is
protracted, provides:

„A Refugee Reception Officer may from time to time extend the period for which a permit has
been issued in terms of subsection (1), or amend the conditions subject to which a permit has
been so issued.‟

[4] Having been granted asylum seeker permits, the appellants attended at the Port
Elizabeth office of the Department at regular intervals to have their permits extended in
contemplation of the finalisation, not just of a decision in respect of the application for
asylum, but also of an appeal to an appeal board in terms of s 26 of the RA. If the
officials of the respondent are to be believed each one of the appellants were arrested
only after:
(i) they had been informed in their home language that their appeals had been
unsuccessful and were thus illegal foreigners; and
(ii) they had been informed of their rights to pursue further processes to thwart
deportation.

[5] The power to arrest and detain the appellants was claimed in terms of s 34(1) of
the Immigration Act 13 of 2002 (the IA), which reads as follows:
„Without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause
him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport
him or her or cause him or her to be deported and may, pending his or her deportation, detain
him or her or cause him or her to be detained in a manner and at a place determined by the
Director-General, provided that the foreigner concerned –
(a) shall be notified in writing of the decision to deport him or her and of his or her right to appeal
such decision in terms of this Act;
(b) may at any time request any officer attending to him or her that his or her detention for the
purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours
of such request, shall cause the immediate release of such foreigner;
(c) shall be informed upon arrest or immediately thereafter of the rights set out in the preceding
two paragraphs, when possible, practicable and available in a language that he or she
understands;
(d) may not be held in detention for longer than 30 calendar days without a warrant of a Court
which on good and reasonable grounds may extend such detention for an adequate period not
exceeding 90 calendar days; and

(e) shall be held in detention in compliance with minimum prescribed standards protecting his or
her dignity and relevant human rights.‟ (My emphasis.)

[6] At the commencement of the trial in the court below there were several issues in
dispute. The appellants disputed their status as determined by the Department and
which at trial was the asserted basis of their arrest, namely that of being illegal
foreigners. Furthermore, the appellants contended that at the time of their arrest they
had not been provided with reasons. They also complained that their rights: (i) to use
further processes provided for in the IA to resist deportation and; (ii) under the
Constitution (especially s 35 which deals with the rights of arrested, detained and
accused persons); and (iii) to Consular access and assistance in terms of Article
36(1)(b) of the Vienna Convention on Consular Relations, 1963, were not explained to
them, rendering their detention unlawful. Importantly, they invoked the principle of
legality in relation to s 34(1) of the IA, contending that they could only, as prescribed by
that subsection, be detained in a manner and at a place determined by the Director-
General of the Department, which they were adamant had not occurred. The
submission was that this requirement of s 34 was in appreciation of the right of illegal
migrants recognised in civilised states, namely, that they should, because of their
vulnerability, be treated as a separate category of detainees and be rigorously
separated from the general prison population. The appellants submitted that their
detention at either Kwazakhele police station or St Albans prison or New Brighton
Police, or other police station or prison (as fourteen of the fifteen appellants had spent
the greater part of their detention at a prison or police station), or even at Lindela
deportation facility was in disregard of the provisions of s 34 as they were not places
„determined by‟ the Director-General, thus rendering their detention unlawful.

[7] At inception the appellants applied in the court below, in terms of Uniform Rule
33, for a decision to be made separately, in respect of their contentions set out at the
end of the preceding paragraph, namely, the interpretation and application of s 34(1) in
relation to a determination by the Director-General. Simply put, the appellants argued
that the respondents were required to prove that a determination as contemplated in s

34(1) of the IA had been made by the Director-General, and the appellants contended
that the absence of such a determination would render the detention unlawful. They
sought a separation of and a decision on this issue. Chetty J ruled against them and a
trial ensued on all the issues in dispute.

[8] The court below, considering the evidence and having regard to the applicable
statutory provisions, rejected the submissions on behalf of the appellants that they were
not illegal foreigners because their asylum-seeker permits had not yet expired at the
time that they were arrested. Chetty J reasoned that such permits remained valid only
until the outcome of the applications and that they lapsed upon the application or any
associated review or appeal being finalised.

[9] The court below also dealt with the submission on behalf of the appellants that
the arresting officials were imbued with a discretion and were required to consider arrest
as a last resort in the deportation process and that in respect of the appellants they did
not apply their minds to each individual case but rather arrested all of the appellants on
the basis of a blanket policy that all illegal foreigners were subject to arrest. The
contention on behalf of the appellants was that the arresting officials could have
considered requiring the appellants to report regularly or they could have employed
other means to monitor their position until deportation was imperative – ie arrest should
have been a final resort after all other processes available to them were exhausted. The
court below, after considering the evidence, said the following:
[I]t is clear . . . that the decision to arrest and deport the plaintiffs was not arbitrary but effected
against the background of all material factors.‟

[10] Furthermore, the court below rejected the appellants‟ claims that they had not
been informed of their rights; in terms of ss 34(1)(a) and (b) of the IA; s 35 of the
Constitution; and the Vienna Convention. Chetty J also rejected the assertion that
proper warrants for the detention of the appellants had not been issued. He accepted
the evidence on behalf of the respondent that the appellants‟ rights had been explained
to them in a language they understood and that the anomalies in the documents

presented in evidence were overcome by the viva voce evidence of the officials who
effected the arrests. He rejected the appellants‟ attack on the integrity of the interpreters
employed by the Department.

[11] Dealing with the question whether, in terms of s 34(1) of the IA, there had to be a
special determination by the Director-General for the detention of illegal foreigners.
Chetty J had regard to the decision in Lawyers for Human Rights v Minister of Safety
and Security and 17 others [2009] JOL 23612 (GNP) in which Raulinga J held that the
IA aimed at setting in place a new system of immigration control which ensured, inter
alia, that immigration control is conducted within „the highest applicable standards of
human rights protection‟. The court there held that „no facility can be used for detention
and deportation of foreigners without the necessary designation by the Director-General
of Home Affairs‟. Chetty J disagreed. He had regard to s 34(7) of the IA which provides:
„(7) On the basis of a warrant for the removal or release of a detained illegal foreigner, the
person in charge of the prison concerned shall deliver such foreigner to that immigration officer
or police officer bearing such warrant, and if such foreigner is not released he or she shall be
deemed to be in lawful custody while in the custody of the immigration officer or police officer
bearing such warrant.‟
His reasoning in relation to the effect of that subsection is set out in the latter part of
para 14 of the judgment of the court below:
„There is a clear indication in subsection (7), which refers to the detention of an illegal foreigner
in a prison that it is the place which the Director-General had determined that an illegal foreigner
be detained pending his or her deportation. Although the term “prison” is not defined in the IA,
its meaning is hardly obscure. By necessary implication, it includes a police cell or lock-up.‟

[12] The court below also placed reliance on the following part of the minority
judgment in Jeebhai & others v Minister of Home Affairs & another 2009 (5) SA 54;
[2009] ZASCA 3 (SCA):
„The detention contemplated in s 34(2) must be by warrant addressed to the station
commissioner or head of a detention facility. Thereafter the suspected illegal foreigner may
either be released or, if he is in fact an illegal foreigner, detained further under s 34(1) for the
purpose of facilitating the person‟s deportation.‟

Chetty J concluded as follows:
„It follows from the aforegoing analysis that the finding by Raulinga, J, that the place of detention
contemplated by s 34(1) has to be designated as such in order to render an illegal foreigner‟s
detention lawful, was clearly wrong. I am satisfied that the plaintiffs were lawfully detained at the
prisons or police stations for purposes of deportation.‟

[13] It is against the conclusions set out in the preceding paragraphs that the present
appeal is directed. Before us counsel on behalf of the appellants accepted that in
practical terms a decision on the discrete point the appellants had applied to have
decided by the court below, as set out in para 7 above, would be dispositive and that a
decision on quantum could then be made on the available evidence.

[14] It is necessary to record the number of days that each appellant spent in
detention. Before doing so, it is also necessary to note that they were released after
litigation, in terms of agreements reached with the Department and court orders to that
effect followed. We were informed that the appellants, who were all arrested during
2010, were still in the country and that various processes in relation to their continued
stay in our country were still being undertaken and were not yet finalised.

[15] The details of the appellants‟ detention are set out hereafter:
(i) First appellant – 16 days.
(ii) Second appellant – 18 days.
(iii) Third appellant – 4 days.
(iv) Fourth appellant – 8 days.
(v) Fifth appellant – 7 days.
(vi) Sixth appellant – 13 days.
(vii) Seventh appellant – 30 days.
(viii) Eight appellant – 16 days.
(ix) Ninth appellant – 35 days.
(x) Tenth appellant – 18 days.
(xi) Eleventh appellant – 18 days.
(xii) Twelfth appellant – 26 days.

(xiii) Thirteenth appellant – 23 days.
(xiv) Fourteenth appellant – 20 days.
(xv) Fifteenth appellant – 7 days.

[16] In the court below the respondent accepted that he bore the onus to justify the
detention. The high-water mark of the respondent‟s case, insofar as a determination by
the Director-General in relation to the manner and place of detention was concerned,
was the evidence of Mr Mudiri Matthews, the Chief Director of Immigration Inspectorate,
at the Department‟s Pretoria office. He was referred by counsel on behalf of the
respondent to a document purporting to be a service-level agreement between the
Department and a private company for the provision of a deportation facility at the
Lindela Detention Facility, Krugersdorp, at which illegal foreigners could be detained,
pending deportation. Four of the fifteen appellants spent a limited time at Lindela
subsequent to their detention elsewhere. Mr Matthews had no personal knowledge
concerning the conclusion of the contract and was unable to take the matter any further
than a supposition that there must have been a determination by the Director-General in
terms of s 34(1) of the IA. There was no viva voce evidence by the Director-General. No
document of any kind purporting to be a determination in terms of s 34(1) of the IA was
presented.

[17] Faced with this conundrum, counsel on behalf of the respondent sought refuge in
the following submissions: First, that s 34(1) does not prescribe how the determination
by the Director-General is to be made and therefore, having regard to the „everyday
use‟ of the word „determine‟ nothing more is required of the Director-General than a firm
or conclusive decision about where illegal foreigners may be detained. It was contended
that „determine‟ has a very different connotation from the word „designate‟. The
contention was that Lindela is the only facility in the country whose sole purpose is to
detain illegal foreigners for purposes of their deportation. Furthermore, it was contended
that Matthews‟ evidence concerning Lindela as a transit facility that served to hold illegal
foreigners until their deportation could not be ignored. Moreover, so the submission was
developed, it must be clearly understood that Lindela, together with police and prison

cells, are places that the Director-General has determined as places where illegal
foreign nationals may be detained until their deportation. It was argued that the
evidence by the respondent‟s witnesses was that the appellants were detained as a
means to an end in the course of facilitating their deportation and thus their detention
was in accordance with s 34(1). Second, reliance was placed on the minority judgment
of Cachalia JA in Jeebhai and the judgment of the Constitutional Court in Lawyers for
Human Rights and another v Minister of Home Affairs and another 2004 (4) SA 125;
[2004] ZACC 12 (CC), as support for the contention that detention at any state detention
facility would suffice.

[18] I now turn to deal with the respondent‟s contentions set out in the preceding
paragraph. Before us it was uncontested that it is internationally accepted that illegal
foreign nationals are particularly vulnerable and that international best practice dictates
that they should be kept apart from the general prison population. In the Report of the
Special Rapporteur of the Human Rights Council of the United Nations on the rights of
migrants for 2012, 1 which has a particular focus on the detention of migrants in irregular
situations, it is noted that the fact that a person is irregularly in the territory of a state
does not imply that he or she is not protected by international human rights standards.
The Special Rapporteur noted with concern that irregular entry and stay by migrants is
considered a criminal offence in some countries. Whilst s 48 of the IA does make it an
offence to enter, remain or depart from South Africa with a concomitant punitive
sanction, this is not what we are dealing with here. We are dealing with detention
pending deportation. In this regard the following comments of the Special Rapporteur
are apposite (para 13):
„He [the Special Rapporteur] wishes to stress that irregular entry or stay should never be
considered criminal offences: they are not per se crimes against persons, property or national
security. It is important to emphasize that irregular migrants are not criminals per se and should
not be treated as such.‟

1 François Crèpeau, A/HR/C/20/24 (2 April 2012) para 13, available at:
http://www.ohchr.org/Documents/HRBodies /HRCouncil/RegularSession/Session20/A-HRC-20-24_en.pdf
(accessed 27 May 2015).

The Special Rapporteur‟s statements on places of detention of migrants are significant
(para 33):
„The Standard Minimum Rules for the Treatment of Prisoners provide that persons imprisoned
under a non-criminal process shall be kept separate from persons imprisoned for a criminal
offence. Additionally, the Working Group on Arbitrary Detention stated in its deliberation No. 5
that custody must be effected in a public establishment specifically intended for this purpose or,
when for practical reasons, this is not the case, the asylum-seeker or immigrant must be placed
in premises separate from those for persons imprisoned under criminal law. At the regional
level, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas2 provide that asylum- or refugee-status-seekers and persons deprived of liberty due to
migration issues shall not be deprived of liberty in institutions designed to hold persons deprived
of liberty on criminal charges.‟ (footnotes omitted)
In para 34 of the report the following appears:
„However, information received by the Special Rapporteur indicates that migrants are detained
in a wide range of places, including prisons, police stations, dedicated immigration detention
centres, unofficial migration detention centres, military bases, private security company
compounds, disused warehouses, airports, ships, etc. These detention facilities are placed
under the responsibility of many different public authorities, at local, regional or national level,
which makes it difficult to ensure the consistent enforcement of standards of detention. Migrants
may also be moved quite quickly from one detention facility to another, which also makes
monitoring difficult. Moreover, migrants are often detained in facilities which are located far from
urban centres, making access difficult for family, interpreters, lawyers and NGOs, which in turn
limits the right of the migrant to effective communication.‟
It further bears mentioning that the report reveals that detentions have not been shown
to reduce migration anywhere in the world, and in this regard it is reported in para 8
that:
„The Special Rapporteur would like to emphasize that there is no empirical evidence that
detention deters irregular migration or discourages persons from seeking asylum. Despite
increasingly tough detention policies being introduced over the past 20 years in countries
around the world, the number of irregular arrivals has not decreased. This may be due, inter
alia, to the fact that migrants possibly see detention as an inevitable part of their journey.‟

2 Inter-American Commission on Human Rights (IACHR), Resolution 1/08 (13 March 2008), available at:
http://www.refworld.org/docid/48732afa2.html (accessed 27 May 2015).

[19] The Inter-American Commission on Human Rights (IACHR), in terms of
Resolution 03/08 of the Inter-American Commission on Human Rights of Migrants,
International Standards and the Return Directive of the EU, (25 July 2008),3 resolved as
follows:
„As international law establishes, migrants may not be held in prison facilities. The holding of
asylum seekers and persons charged with civil immigration violations in a prison environment is
incompatible with basic human rights guarantees.‟
Article 17(2) of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families,4 (although it must be noted that South
Africa is not a signatory), provides:
„Accused migrant workers and members of their families shall, save in exceptional
circumstances, be separated from convicted persons and shall be subject to separate treatment
appropriate to their status as unconvicted persons. Accused juvenile persons shall be separated
from adults and brought as speedily as possible for adjudication.‟
Article 17(3) reads as follows:
„Any migrant worker or member of his or her family who is detained in a State of transit or in a
State of employment for violation of provisions relating to migration shall be held, in so far as
practicable, separately from convicted persons or persons detained pending trial.‟

[20] Cognisant of international best practice the legislature adopted s 34(1) of the IA,
with the Director-General being required to make a determination which would be in line
with what is set out in the preceding paragraphs. The detention of illegal foreigners
subject to deportation in circumstances such as in the present case is not subject to the
Criminal Procedure Act 51 of 1977. Section 34(1) of the IA regulates their detention.
Thus, the detention can only take place as prescribed by that subsection and that
means in the manner and at a place determined by the Director-General. The exercise
of public power is constrained by the principle of legality which is foundational to the rule

3 Available at: http://www.refworld.org/docid/488ed6522.html (accessed 27 May 2015).
4 United Nations Treaty Series vol.2220, p. 3; Doc. A/RES/45/158, available at:
https://www.ohchr.org/english/law/cmw.htm (accessed 27 May 2015). Adopted 18 December 1990.
Entered into force 1 July 2003.

of law. 5 In s 34(1) the words that dictate the manner and place of detention are
deliberate and not superfluous. Detention pending deportation can only occur according
to its prescripts. Reliance on s 34(7) by the court below and the respondents is
misplaced. The latter subsection of the IA regulates the removal or release of a
detained illegal foreigner on the basis of a warrant to be presented to „the person in
charge of the prison‟. It does not follow that the prison referred to, does not have to be
determined by the Director-General as a place at which an illegal foreigner may be
detained pending deportation. There is nothing to prevent a determination by the
Director-General that a discrete part of a prison or other State detention facility which
meets international standards, is to be used as a place at which illegal foreigners can be
detained pending their deportation.

[21] The court below and the respondents relied on the following dictum in the
Constitutional Court decision in Lawyers for Human Rights v Minister of Home Affairs
2004 (4) SA 125; [2004] ZACC 12 (CC) (para 39) for their contrary view:
„Section 34(1) is concerned with a situation different from that contemplated by s 34(8).
Subsection (8), in part, is concerned with and authorises the detention of people suspected of
being illegal foreigners on a ship by which they arrived. It will be remembered that s 34(8) gives
immigration officers a choice. They can either be content with the detention of the people
concerned on the ship, or cause people to be detained elsewhere. Section 34(1) is designed to
cater for the situations in which illegal foreigners are detained in a facility over which the
government has control and which is serviced or frequented by State officers.‟ (My emphasis.)
It was submitted on behalf of the respondent that the latter part of the paragraph
indicates that a detention facility which the State services and over which it has control
would suffice, without a specified determination having to be made by the Director-
General. In that case the court was concerned with the validity of ss 34(2) and (8) of the
IA. Section 34(8) provides for the detention of a person at a port of entry or on a ship.
Section 34(1) was referred to by the Constitutional Court by way of contrast. Section
34(2) deals with the maximum period of detention of a person detained in terms of the

5 See Fedsure Life Assurance v Greater Johannesburg TMC 1999 (1) SA 374; [1998] ZACC 17 (CC) at
399B-C and Pharmaceutical Manufacturers of South Africa: In re Ex Parte President of the Republic of
South Africa 2000 (2) SA 674; [2000] ZACC 1 (CC) para 40.

IA for purposes other than his or her deportation. The issue we are presently grappling
with was not raised or dealt with by the Constitutional Court in that case, and in any
event it seems tenuous to interpret the above dictum, in which the Constitutional Court
was explaining the general context of one section and contrasting it against the general
context of another, as conclusively determining the substantive requirements laid down
by those provisions.

[22] The reliance on the minority judgment by Cachalia JA in Jeebhai is also
unwarranted. In para 24, referred to earlier, on which reliance was placed, the following
appears:
„The detention contemplated in s 34(2) must be by warrant addressed to the station
commissioner or head of a detention facility. Thereafter the suspected illegal foreigner may
either be released, or if he is in fact an illegal foreigner, detained further under s 34(1) for the
purpose of facilitating the person‟s deportation.‟ (Footnotes omitted.)
The respondents once again sought to persuade us that this passage indicated that any
detention facility would suffice for the detention of illegal foreigners pending deportation
without a specific determination having to be made by the Director-General. In Jeebhai,
this court was concerned with an individual who fell within the definition of illegal
foreigner and who was therefore subject to arrest in terms of s 34 of the IA. The
decision of the court flowed from the failure of the respondent to secure a warrant for his
detention and deportation in terms of the applicable regulation. This court was not there
dealing with the point presently under discussion.

[23] In Zealand v Minister of Justice and Constitutional Development 2008 (4) SA
458; [2008] ZACC 3 (CC), the Constitutional Court reaffirmed a long-standing principle.
The following appears in para 25:
„This is not something new in our law. It has long been firmly established in our common law
that every interference with physical liberty is prima facie unlawful. Thus, once the claimant
establishes that an interference has occurred, the burden falls upon the person causing that
interference to establish a ground for justification. In Minister van Wet en Orde v Matshoba
[1990 (1) SA 280; [1989] ZASCA 129 (A)], the Supreme Court of Appeal again affirmed that
principle, and then went on to consider exactly what must be averred by an applicant

complaining of unlawful detention. In the absence of any significant South African authority,
Grosskopf JA found the law concerning the rei vidicatio a useful analogy. The simple averment
of the plaintiff‟s ownership and the fact that his or her property is held by the defendant was
sufficient in such cases. This led that court to conclude that, since the common-law right to
personal freedom was far more fundamental than ownership, it must be sufficient for a plaintiff
who is in detention simply to plead that he or she is being held by the defendant. The onus of
justifying the detention then rests on the defendant. There can be no doubt that this reasoning
applies with equal, if not greater, force under the Constitution.‟ (Footnotes omitted.)

[24] In Jeebhai, Ponnan JA said the following about the detainee in that matter (para
63):
„Given that the deprivation of Mr Rashid‟s liberty was prima facie unlawful, it was for the
respondents to justify such deprivation. In this instance one would have thought that as a bare
minimum the respondents would have sought to show compliance with reg 28. It would to my
mind have been a relatively simple matter to have adduced duly completed forms 28 and 35 as
proof of compliance with reg 28. That the respondents failed to do. After all, it seems to me that
the reg 28 safeguards exist, not just for the benefit of the illegal foreigner, but also to protect the
respondents against unjustified and unwarranted claims flowing from detention or deportation,
or both.‟
In the present case, it was for the respondent to show that the Director-General had
made the determinations contemplated in s 34(1). This they failed to do. No attempt
was made to show that any part of St Albans prison or any part of any police holding
cells, or indeed even in respect of the Lindela detention centre, was determined by the
Director-General, in accordance with international norms to be a place at which illegal
foreigners were to be detained pending deportation. The making of a determination by
the Director-General under s 34(1) of the IA seems, on its face, to be both a relatively
simple exercise while at the same time being crucially important in upholding the rights
of detained foreign persons. No attempt was made by the respondent to justify the
failure to do so. And, although the issue did not arise for a final determination in this
case, I would add that it seems to me that such a determination must be publicly
proclaimed as this is vital for certainty and effective administration according to
constitutional and international standards. The reasoning of Raulinga J set out in para
11 above is accordingly unassailable. It follows that the detention of all of the appellants

was unlawful. It is not necessary to deal with the other conclusions reached by Chetty J
save to state that I have reservations about his ready acceptance of the evidence of the
respondent‟s officials, that they explained to each appellant his or her rights including
the rights to Consular access. The evidence adduced before Chetty J by the respondent
concerning interpretation by way of telephone is ludicrous. In respect of one of the
appellants it was accepted that there was no opportunity to explain the rights he was
entitled to pursue. That leads us to the next question, which is the quantum of damages.

[25] Counsel on behalf of the appellants accepted that the appellants had failed to
present evidence concerning the conditions under which they were held and
furthermore had failed to testify about the personal impact of detention. Such evidence
as there was about the conditions at St Albans prison and at Kwazakhele police station
was elicited by way of cross-examination of the respondent‟s witnesses. It certainly
appears, as would be the case with many people who cross our borders without the
necessary authorisation, that most of the appellants did so to earn a living and make a
better life. Appellants‟ counsel conceded that this sparse material was far from
satisfactory and urged us to do the best we could under the prevailing circumstances.

[26] It was conceded in the court below that the asylum-seeker application forms
were what they purported to be and the information therein was unchallenged. The
appellants provided information in support of their application for asylum which included,
inter alia, the floods in Bangladesh as a reason for seeking asylum in South Africa
which, predictably, the appeal board held to be manifestly unfounded. The appellants
chose not to testify to controvert that conclusion. I agree with the conclusion by the
court below that the appeal board decision superseded the temporary asylum-seeker
permit. Whilst the appellants certainly have the right to pursue further processes to
resist deportation, the limited information referred to earlier in this and the preceding
paragraph is the sparse basis upon which we are called upon to make a determination
concerning quantum. The parties agreed that, should we incline in favour of the
appellants on the law point, we would be at large to determine compensation.

[27] The deprivation of liberty is indeed a serious matter. In cases of non-patrimonial
loss where damages are claimed the extent of damages cannot be assessed with
mathematical precision. In such cases the exercise of a reasonable discretion by the
court and broad general considerations play a decisive role in the process of
quantification.6 This does not, of course, absolve a plaintiff of adducing evidence which
will enable a court to make an appropriate and fair award. In cases involving deprivation
of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Inter
alia the following factors are relevant:
(i) circumstances under which the deprivation of liberty took place;
(ii) the conduct of the defendants; and
(iii) the nature and duration of the deprivation.7
Having regard to the limited information available and taking into account the factors
referred to it appears to me to be just to award globular amounts that vary in relation to
the time each of the appellants spent in detention. The third appellant spent the least
amount of time in detention, namely, four days. In my view a fair amount to be awarded
to him as compensation would be R3 000. The fifth and fifteenth appellants spent seven
days in prison. In my view, a fair amount in respect of their detention would be an
amount of R5 000. The fourth appellant spent 8 days in detention. In my view, a fair
amount in relation to his detention, is an amount of R6 000. The sixth appellant spent 13
days in detention. In my view, a fair amount in relation to his detention would be an
amount of R8 000. The first and eight appellants spent 16 days in detention. In my view,
a fair amount for them is R10 000. The second, tenth and eleventh appellants spent 18
days in detention. In my view an amount of R12 000 is appropriate. The fourteenth
appellant spent 20 days in detention. In my view an amount of R14 000 is adequate.
The thirteenth appellant spent 23 days in detention. In this regard an amount of
R16 000 appears proper. The twelfth appellant spent 26 days in detention. In my view
an amount of R18 000 is satisfactory. The seventh appellants spent 30 day in detention.
An award of R20 000 seems in order. The ninth appellant spent 35 days in detention. In
my view an amount of R25 000 appears fair.

6 J M Potgieter, L Steynberg and T B Floyd Visser & Potgieter’s Law of Damages 3 ed (2012) at 568.
7 H J Erasmus and J J Gauntlett „Damages‟ in 7 Lawsa 2ed at para 101.

[28] The following order is made:
1. The appeal is upheld and the respondent is ordered to pay the appellants‟ costs,
including the costs of two counsel.
2. The order of the court below is substituted by the following order:
„1. The detention of each of the Plaintiffs is declared to have been unlawful.
2. The Defendant is ordered  to pay damages to the Plaintiffs as follows:
2.1 To the First Plaintiff an amount of R10 000 together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.2 To the Second Plaintiff an amount of R12 000 together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.3 To the Third Plaintiff an amount of R3 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.4 To the fourth Plaintiff an amount of R6 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.5 To the Fifth Plaintiff an amount of R5 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.6 To the Sixth Plaintiff an amount of R8 000, together with interest thereon, at the rate
of 15,5 per cent per annum until the date of full and final payment thereof;
2.7 To the Seventh Plaintiff an amount of R20 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.8 To the Eighth Plaintiff an amount of R10 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.9 To the Ninth Plaintiff an amount of R25 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.10 To the tenth Plaintiff an amount of R12 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;

2.11 To the Eleventh Plaintiff an amount of R12 000, together with interest thereon, at
the rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.12 To the Twelfth Plaintiff an amount of R18 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.13 To the Thirteenth Plaintiff an amount of R16 000, together with interest thereon, at
the rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.14 To the Fourteenth Plaintiff an amount of R14 000, together with interest thereon, at
the rate of 15,5 per cent per annum until the date of full and final payment thereof;
2.15 To the Fifteenth Plaintiff an amount of R5 000, together with interest thereon, at the
rate of 15,5 per cent per annum until the date of full and final payment thereof.
3. The Defendant is ordered to pay the Plaintiffs‟ costs of suit, including the costs of two
counsel.‟

________________________
M S NAVSA
ACTING DEPUTY PRESIDENT

APPEARANCES:

FOR APPELLANT:

A Beyleveld SC (with him A C Moorthouse and D S Bands)

Instructed by:

McWilliams & Elliott Inc., Port Elizabeth

Webbers, Bloemfontein
FOR RESPONDENTS:

M T K Moerane SC (with him L T Sibeko SC and W Msizi)

Instructed by

The State Attorney, Port Elizabeth

The State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

___ May 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA (###)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) upheld the appeal by Abdul Rahim and 14 others (the
appellants) and overturned the decision of the Eastern Cape Division of the High Court, Port
Elizabeth, in terms of which the claims of the appellants for damages flowing from an asserted
unlawful detention were dismissed with costs.  In the result, it declared that the detention of each of
the appellants was unlawful, and awarded them damages as a consequence.

The issue before the SCA was the interpretation of s 34(1) of the Immigration Act 13 of 2002 (IA),
which provides that illegal foreigners must be detained ‘in a manner and at a place determined by the
Director-General’. The question the SCA was called upon to decide was whether the detention of
illegal foreigners was lawful where there had been no such determination of detention facilities by the
Director-General.

The Minister of Home Affairs (the respondent) claimed that the appellant were all illegal foreigners
who had been arrested by immigration officers in the employ of the respondent, and were each
detained for various periods at various facilities, including police stations and ordinary prison cells.
The appellants had instituted action in the court a quo to have their arrests and detentions declared
unlawful and for consequential damages, which claims, as were stated before, were dismissed on the
basis that both the arrests and the detentions were lawful.

Before the SCA, a number of arguments were advanced. However, the primary issue was whether
the Director-General had ‘determined’ the places at which the appellants had been detained in
compliance with s 34(1) of the IA.  It was argued on behalf of the respondent that there was no

particular form which the ‘determination’ had to take, and provided that the facilities in question were
under state control, the lack of a formal determination did not render their use unlawful.

In rejecting this argument, the SCA explained that the case was adjudicated against a sensitive
backdrop. South Africa has kilometre upon kilometre of porous borders which the Department of
Home Affairs has difficulty controlling, and there is public concern about the illegal influx of foreigners.
This has caused a degree of animosity to be directed at them, and more recently has led to what
have been described as xenophobic attacks on foreigners. It is vital in this context, the SCA held, to
affirm that we are a constitutional state subscribing to the principle of legality, an incident of the rule of
law, and that we are bound by the normative standard demanded by our Constitution.

The SCA then referred to a number of international conventions which emphasise the vulnerability of
asylum seekers and migrants, who are often unable to understand or communicate with immigration
officials, or to obtain the help of interpreters or legal advisors, and are not aware of their rights and
the appropriate procedures to enforce them. The SCA also noted that international best practice,
precisely because of this vulnerability, is to ensure that illegal foreign nationals are kept apart from
the general prison population.

Consequently, having regard to the wording of s 34(1) of the IA in its context and with reference to the
applicable international law framework, the SCA held that it was clear that the ‘determination’
contemplated is a formal identification of places which are run in accordance with international norms
and which are appropriate for the detention of illegal foreigners pending deportation.  No evidence
was placed before the SCA of any such determination, and accordingly the detentions of the
appellants were in contravention of s 34(1) of the IA and thus unlawful.

In the light of this, the SCA upheld the appeal and granted damages to the appellants, calculated in
relation to the duration of their unlawful detentions.

--- ends ---