JOHANNESBURG — Proposed changes to South Africa’s immigration laws are drawing close attention from Zimbabweans living and working in the country, as the Department of Home Affairs moves to amend legislation governing the arrest and detention of undocumented foreigners.
The Immigration Amendment Bill of 2024, currently before the National Council of Provinces (NCOP), seeks to align the Immigration Act with several Constitutional Court rulings while introducing new provisions that could significantly affect how immigration enforcement is carried out. The Bill is now open for public comment, prompting concern among migrant communities, including Zimbabweans, who form one of the largest groups of foreign nationals in South Africa.
The legislative process follows a landmark Constitutional Court ruling in 2017, which found sections 34(1)(b) and (d) of the Immigration Act unconstitutional. The Court ruled that the law failed to adequately protect the rights of detained foreigners, particularly by not requiring immigration officials to inform detainees of their right to legal representation, denying them the opportunity to appear in court, and permitting prolonged detention without judicial oversight.
To address these violations, the Court suspended its declaration of invalidity for 24 months, allowing Parliament time to amend the law. During this period, it imposed interim safeguards, including a requirement that any “illegal foreigner” detained under the Act be brought before a court in person within 48 hours of arrest.
In October 2023, the Court further strengthened these protections by supplementing its earlier order. It ruled that detainees must be allowed to appear in person when a court is considering whether to extend detention beyond 30 days. The Court also introduced the “interests of justice” criterion, providing guidance to immigration officers and courts when exercising discretion under the Immigration Act.
According to legal experts at Cliffe Dekker Hofmeyr, the Immigration Amendment Bill proposes substantial changes to the procedures for arrest, detention and judicial oversight of undocumented foreigners. While the Bill aims to give legislative effect to the Constitutional Court’s rulings, stakeholders have raised concerns that certain provisions could still allow for broad discretionary powers by immigration officials.
“The Bill proposes significant changes to the arrest and detention of undocumented foreigners, and a wide range of stakeholders have submitted comments highlighting both legal and practical concerns,” Cliffe Dekker Hofmeyr said in a statement. “Further developments are expected as Parliament and the Department of Home Affairs consider the submissions made by the public.”
For Zimbabweans living and working in South Africa—many of whom are employed in construction, agriculture, domestic work, mining and the informal sector—the proposed amendments carry potentially serious implications. Civil society organisations and migrant rights groups warn that stricter enforcement mechanisms, if not balanced with strong procedural safeguards, could increase the risk of arbitrary arrests and prolonged detention.
Zimbabwean community leaders in Gauteng and other provinces have expressed particular concern about access to legal representation, language barriers, and the ability of detainees to understand and exercise their rights when arrested. There are also fears that undocumented or partially documented migrants could be disproportionately affected during enforcement operations.
At the same time, some legal analysts note that the Bill’s incorporation of the “interests of justice” standard and mandatory court appearances could, if properly implemented, strengthen protections for migrants compared to the current system.
With the Bill open for public comment, migrant advocacy groups are urging Zimbabweans and other foreign nationals to engage with the process, either directly or through civil society organisations. They argue that meaningful consultation is essential to ensure the final law balances immigration control with constitutional rights and human dignity.
As Parliament considers the submissions and moves closer to finalising the legislation, Zimbabweans in South Africa are watching closely. The outcome of the Immigration Amendment Bill is expected to shape the legal and everyday realities of migration enforcement in the country for years to come.
