I. Constitutional Litigation – High Court litigation to challenge Constitutionality of Immigration Laws or Conduct of the Department in a Decision
Even though constitutional litigation is infrequent, there is often the need to challenge the constitutionality of not only certain provisions of the Act or the 2014 Regulations but also the conduct of the Department.
What is becoming a problem is the Department’s inclination to declare foreign persons to be ‘prohibited persons’ in terms of section 29 of the Act where there is a suggestion of a fraudulent document. This is a subject for concern as section 29 of the Act is in our view unconstitutional since it permits the Department to simply make a determination of ‘prohibited person’ status without providing reasons or the basis of such decision.
Smiedt & Associates would then seek to challenge the constitutionality of section 29 of the Act and the conduct that led to the ‘prohibited person’ status.
Another example would be when a foreign person who has overstayed and now seeks to depart South Africa. The immigration officer at the airports or land borders has been mandated to declare such foreign person undesirable and ban them from returning to South Africa regardless of the reasons.
Effectively, this deprives the foreign person the opportunity to state his or her case before being punished i.e. banned. This remains unfair and unconstitutional as not only is the law unconstitutional by its failure to give a right of hearing, but so too, the conduct of the immigration officer would fall to be set aside as the officer would have failed to apply any discretion in making a decision about the foreign persons circumstances. Section 30(1) of the Act states that the Director-General and his delegates “may declare” and not ‘must’ declare.