The Department has the right to charge foreign persons for any contravention of the Act in terms of section 49 of the Act.

Immigration related offences in terms of our criminal law are statutory offences and are often brought by the Department as the complainant with a SAPS official as the investigating officer.

It is essential that matters of this nature are immediately brought to our attention, by first ensuring that bail is agreed upon, or if not, a date is set for a bail hearing in terms of section 60 of the Criminal Procedure Act. Our courts wrongly assume that, if a foreigner is charged in South African courts, they are immediate flight risks, which is wrong as it unfairly discriminates against foreign persons.

Once bail is arranged or granted by the court, then the merits of the criminal case must be addressed and here we will take proper instructions to ascertain what the basis of the State’s case is and then seek to formulate our defense to dispose of the case without the need for a trial.

Note: The onus of proof is on the State to prove all the elements of the offence beyond a reasonable doubt. The State must prove that the foreign person has the intent to commit such immigration offence and not just point to the conduct showing criminal liability.