- Bernard Egbuna Mba was released from detention after the High Court found that his continued detention pending deportation was unlawful.
- The court held that Home Affairs failed to comply with mandatory legal steps required under the Immigration Act before detaining him for deportation.
- Mba remains an illegal foreigner in law, but his deportation has been suspended while he pursues review proceedings.
Bernard Egbuna Mba, a Nigerian national married to a South African citizen and father of three minor South African children, has won his urgent bid for freedom.
The High Court in the Western Cape has found that the State unlawfully detained him while preparing to deport him from South Africa.
Acting Judge A Montzinger ordered that Mba be released immediately and suspended his deportation until he completes legal proceedings challenging both his conviction and the deportation order made against him.
Judge Montzinger said, “Every deprivation of liberty is presumptively unlawful.” That finding became the foundation for a judgment that carefully examined how Mba was detained and whether officials followed the strict legal process required by the Immigration Act.
A family man facing removal
Mba came to South Africa in 2005. He later married Mandisa Mdokwe, a South African citizen, and built a life in the country. The court heard that he and Mdokwe have three minor children together and that Mba owns three immovable properties in South Africa.
His legal troubles began on 8 February 2026 after a domestic dispute led to an assault complaint. He was arrested and detained at Somerset West Police Station. During processing, police could not verify his immigration status. Home Affairs records showed that his asylum seeker application had been rejected and that his life partner visa had expired in November 2023. Since then, he had not regularised his stay.
That led to an additional criminal charge under Section 49 of the Immigration Act for being in South Africa without valid documentation. Mba pleaded guilty, paid a R2 000 fine, and the magistrate ordered that he be deported and detained pending removal.
But the reality of imminent deportation changed everything. Barely 10 days later, Mba approached the High Court seeking urgent relief.
What Mba told the court
Mba argued that his guilty plea was not properly informed. He told the court that English is not his first language, that he speaks Igbo, and that no Igbo interpreter was provided during proceedings. He also said he did not understand that pleading guilty could lead directly to deportation.
He further argued that he was never given a proper chance to explain his family circumstances, including the impact deportation would have on his wife and three children, all of whom are South African citizens.
His challenge was not only about deportation. It was also about liberty. He argued that his continued detention was unlawful.
Home Affairs failed on the law
Judge Montzinger found that Home Affairs failed to produce key legal documents required before an illegal foreigner can lawfully be detained for deportation. No Form 28 detention warrant was produced. No Form 29 notice informing Mba of his rights was placed before the court. There was also no evidence that an immigration officer exercised the required discretion to detain him.
Judge Montzinger wrote, “The shortcomings in the process of detention, I have highlighted, are not technical or formalistic.” The court added, “The forms exist for the purpose of giving operative content to the constitutional rights of the detainee.”
The court found that these were not minor paperwork errors. They were failures that struck at constitutional protections against arbitrary detention. Judge Montzinger also rejected the idea that detention automatically follows a deportation order. In a pointed finding, the court said, “The power is discretionary, not automatic, and it must be exercised by an immigration officer in respect of each case.”
The judge went further, warning that what Home Affairs described as standard practice was legally unacceptable. The court held, “It is, in Ulde’s language, the implementation of a blanket policy. It is the very thing the Supreme Court of Appeal held to be unlawful.”
Illegal, but still protected by law
The court accepted that Mba is an illegal foreigner because his visa expired and he has remained in South Africa without valid authorisation. According to his own account, he has been unlawfully in the country since November 2023. But that did not end the matter.
Judge Montzinger emphasised that unlawful immigration status does not strip a person of constitutional protections. The court said, “The status of the applicant as an illegal foreigner does not exclude him from the protection of those rights.”
That meant Mba was entitled to challenge unlawful detention and secure release. The judge concluded, “The applicant is therefore entitled to be released.”
Mba is now free, but his immigration battle is far from over. His deportation remains suspended only while he pursues Part B of his application, which seeks to review and set aside his plea, conviction, sentence, and deportation order.
If he loses those proceedings, he must leave South Africa voluntarily within ten calendar days. If he does not, Home Affairs may arrest, detain, and deport him in accordance with the Immigration Act.
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