The National Council of Provinces (NCOP) unanimously passed the Immigration Amendment Bill on Wednesday, paving the way for its submission to President Cyril Ramaphosa for final assent. 

This legislation comes in response to a ruling by the Constitutional Court in June 2017, which mandated Parliament to amend the Immigration Act within 24 months due to its unconstitutional elements.

The court had held that the Act was unconstitutional because it did not require an automatic judicial review of a detention before 30 calendar days expired.

It had also noted that the Act did not require that a detainee be informed of his or her rights, in particular, the right to legal representation by a lawyer of their own choice and be assigned one at State expense if substantial injustice would otherwise result.

In its supplementary judgment issued on 30 October 2023, the court ordered that undocumented immigrants could only be detained if deemed in the interests of justice and it mandated court appearances within 48 hours of detention.

The journey of the Immigration Amendment Bill began when it was introduced by the Department of Home Affairs in April 2024, passing through the National Assembly before finally reaching the NCOP in September.

At its last sitting for the year on Wednesday, the NCOP considered the Select Committee on Security and Justice’s report after conducting public consultations on the bill.

A total of 60 MPs voted in favour, with just five against and one abstention.

NCOP chairperson Refilwe Mtseni-Tsipane confirmed the bill’s passage, announcing, “In terms of section 75 of the Constitution, the bill stands agreed to.”

Select Committee on Security and Justice chairperson Jane Mananiso noted that the bill aims to foster a human rights culture in migration and strengthen judicial oversight and the rule of law in compliance with the Constitutional Court order.

“The bill introduces the interest of justice criteria, which serves as a guidance within which immigration officers and the courts may exercise detention powers,” she added.

ANC MP Mwelo Nonkonyana acknowledged the complexities of migration, stating that it concerns both the benefits and challenges faced by receiving countries.

“However, we make a point that anyone who travels in and out of South Africa should do so with the necessary traveling documents,” Nonkonyana added.

DA MP Mzamo Billy praised the bill for restoring lawfulness, certainty and oversight to immigration enforcement.

“It reinforces the rule of law while preserving the authority of states to manage its borders,” Billy said.

MK Party MP Sibongiseni Majola said they noted that the amendment bill was not by choice, but it was through the Constitutional Court ruling.

He said had it not been for the judgment, the power of detention would have continued unchecked.

Majola took a swipe at the department, saying it remained an institutional failure with persistent backlogs and the IT system collapsing.

“The MK Party does not accept this legislation while systematic failure continues,” he said.

EFF MP Makuduele Mampuru reiterated the importance of granting all individuals, irrespective of their immigration status, access to legal representation.

Mampuru said the challenges of illegal immigration into South Africa were because the ANC government failed to secure the borders.

“The bill will ensure that illegal immigrants, due for deportation, are handled in a just and equitable manner, and that their rights to human dignity must be counter-balanced with the rights of the South African state to maintain its territorial integrity,” said Mampuru.

NCOP deputy chairperson and IFP MP Les Govender expressed that the bill would provide clearer guidelines for law enforcement on handling illegal immigrants in detention, benefitting the justice system by preventing prolonged detentions.

“It would really be unfair upon those people that are in detention for long periods of time to remain there, and that creates problems for our justice system in terms of the prisons and immigrants being held there for so long,” Govender said.

Patriotic Alliance MP Bino Jan Farmer raised concerns regarding the pressures on jobs, services, and security faced by South Africans, calling for an immigration system prioritising the needs of the country’s citizens.

“The Immigration Amendment Bill comes at a time when our country is facing pressure on jobs, public services, housing, healthcare, and law enforcement,” said Farmer.

mayibongwe.maqhina@inl.co.za

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