- The High Court ruled that magistrates have no power to order the deportation of undocumented foreign nationals.
- Six deportation orders were set aside, while the convictions and criminal sentences were upheld.
- The court found that deportation is exercised by immigration officers under the Immigration Act, not by criminal courts.
A Full Bench of the High Court Western Cape has ruled that magistrates have no legal authority to order the deportation of undocumented foreign nationals convicted under the Immigration Act.
The unanimous judgment, delivered by Judge R Henney, Judge H Slingers and Acting Judge A Kantor, reviewed six criminal matters referred to the court to determine whether a magistrates’ court has the power to order deportation after convicting an accused of contravening Section 49(1)(a) of the Immigration Act.
The court answered that question in the negative, holding that “a magistrates’ court does not have the power to make an order for the deportation of that accused”.
Six matters before the court
The review involved six accused who had been convicted of being in South Africa unlawfully. In five matters, magistrates had ordered deportation as part of the sentence. Those deportation orders were all set aside, while the convictions and sentences were otherwise confirmed.
In the sixth matter, the magistrate had declined to order deportation and instead ordered the accused to report to the nearest Department of Home Affairs office within 30 days. The Full Bench kept that condition in place. The court also set aside an order requiring one accused to be detained for the purposes of deportation.
Why the court rejected deportation orders
The judges found that the Immigration Act creates a clear distinction between criminal offences and deportation. Section 49 allows a court to convict and sentence a person for unlawfully entering or staying in South Africa, while Sections 32 and 34 regulate the deportation of undocumented foreign nationals through immigration officers.
The judgment states, “The statutory scheme therefore draws a clear distinction between criminal liability under Section 49 and deportation under Sections 32 and 34”. The court held that nothing in the Immigration Act expressly gives magistrates the power to order deportation, and that judicial officers may only exercise powers granted to them by statute.
As the judges put it, “Magistrates’ courts are creatures of statute and have no jurisdiction beyond that granted by the Constitution, or by statute.”
Cuna no longer stands
The Full Bench looked at the 2020 Gauteng High Court decision in Luis Alberto Cuna v S, which had held magistrates were obliged to order deportation after convicting undocumented foreign nationals.
The judges found that the decision did not identify any legal basis for that power and concluded that its reliance on Section 34(6) of the Immigration Act was misplaced.
Instead, the court held that Section 34(6) deals only with deportation before a prison sentence ends and does not let a court make the deportation decision.
Power rests with Home Affairs
The judgment concludes that deportation remains an administrative function exercised by immigration officers under the Immigration Act.
“There is no statutory basis for a magistrates’ court to order deportation,” the court held, confirming that criminal courts may impose only the sentences authorised by Section 49 of the Act.
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