South Africa has amended its immigration law to require judicial oversight over the detention of undocumented foreign nationals pending deportation, bringing legislation into line with Constitutional Court rulings that have been ignored for nearly a decade.
President Cyril Ramaphosa passed the Immigration Amendment Act in May, but it will take effect only on a date determined by presidential proclamation, meaning operational changes at the department of home affairs are not yet in effect.
Under the new framework, an immigration officer who arrests an undocumented foreign national must first conduct an interview and consider whether the interests of justice permit release on reasonable conditions. If the officer proceeds with detention, the foreign national must be brought before a court in person within 48 hours.
The court then independently assesses whether continued detention is justified. If it is, the court may authorise a further detention period not exceeding 30 calendar days, and thereafter a further period not exceeding 90 calendar days.
The detained person must be given an opportunity to make oral or written representations which the court considers alongside submissions from the immigration officer.
Detainees must also be informed of their right to legal representation and, where serious injustice would otherwise result, to a state-appointed lawyer at state expense.
The law arrives in the middle of a charged political moment as a wave of anti-immigration protests has swept through communities across the country, with some groups claiming undocumented foreign nationals had until June 30 to leave South Africa.
The demonstrations have turned violent in places, with foreign-owned spaza shops and vehicles set alight. The unrest prompted diplomatic fallout, with Ghana and Nigeria summoning South African high commissioners, while Malawi and Ghana moved to repatriate their citizens.
The evacuation of the first 500 Nigerian nationals from South Africa will take place on Wednesday, they are expected to arrive in Nigeria on Thursday morning.
The amendments to section 34 of the Immigration Act were compelled by the Constitutional Court, which in 2017 ruled in Lawyers for Human Rights v Minister of Home Affairs that detaining foreign nationals for up to 30 days without automatic judicial review was unconstitutional. Parliament was given 24 months to fix the law. It took eight years.
A supplementary judgment in October 2023 reinforced the court’s instruction, underscoring the continued absence of judicial oversight undermined constitutional guarantees of liberty and security of the person. The National Council of Provinces passed the bill unanimously in December 2025.
Ramaphosa addressed the nation on Sunday, promising a government crackdown on illegal immigration. Measures announced include relocating refugee reception centres to border posts, establishing dedicated courts to fast-track deportations, increasing penalties for employers who hire undocumented workers, and phasing out the green ID book, which officials said has been exploited for identity fraud.
The first dedicated court will be established near OR Tambo International Airport in Johannesburg, according to justice and constitutional development minister Mmamoloko Kubayi.
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