After Unlawful Detention: The Rahim Damages Claim, and a Case a Chinese Party Lost

After Unlawful Detention: The Rahim Damages Claim, and a Case a Chinese Party Lost

Rahim 2016 (3) SA 218 (CC) | Li [2012] ZAGPPHC 163. Detention in an undesignated place is unlawful and gives rise to a claim; while refusing to acknowledge receipt of a notice was enough to sink every procedural defence.

The previous article was about "how long they can hold you". This one is about what to do when they get it wrong.

In 2016, in Rahim, the Constitutional Court confirmed one thing: detaining a person in a place not designated in accordance with the law by the Director-General renders the detention unlawful even where the arrest itself was justified — and the State bears liability in damages.

But this article also tells of a case that failed. In 2012, eleven Chinese nationals lost in the Pretoria High Court. The court accepted that the wording of the Department of Home Affairs' notice was defective, yet still dismissed the application — for a single reason: they refused to acknowledge receipt of that notice.

Part 1 — Rahim: An Unlawful Place of Detention Means the State Must Pay

Case file

• Case name: Minister of Home Affairs v Rahim and Others
• Citation: 2016 (3) SA 218 (CC); 2016 (6) BCLR 780 (CC); [2016] ZACC 3
• Court: Constitutional Court | CCT 124/15
• Judge: Nugent AJ writing, unanimous
• Date: 18 February 2016
• Facts in brief: Several "illegal foreigners" were detained in police cells, in a place not designated by the Director-General under s 34(1)
• Outcome: Appeal and cross-appeal both dismissed; the damages fixed by the Supreme Court of Appeal upheld

§ Immigration Act 13 of 2002, s 34(1) (gist)

An immigration officer may, without a warrant, arrest an illegal foreigner and detain that person at a place determined by the Director-General, in the prescribed manner, pending deportation...

The Department's defence was: the arrest was lawful, only the place of detention was wrongly chosen, which is a technical defect that should not make the whole detention unlawful, still less give rise to liability in damages.

§ The rules this case established

1. The lawfulness of the arrest and the lawfulness of the place of detention cannot be severed. The word the court used was inextricably linked. What s 34(1) authorises is the composite act of "arresting and detaining at a designated place"; where the Director-General has made no designation, the precondition for that authorisation simply does not exist. The detention is therefore unlawful from the outset.
2. A breach of a public-law duty here sounds in damages. Not every breach of a public-law duty gives rise to civil liability. Here the court made a determination of legal policy: the purpose of the s 34(1) requirement to designate a place is precisely to protect the dignity and freedom of vulnerable foreigners (sections 10 and 12 of the Constitution), and imposing civil liability is consistent with that purpose.
3. Damages are calculated by the number of days detained. The damages fixed by the Supreme Court of Appeal were calculated according to each person's days of detention, and the Constitutional Court upheld this. The exact figures should be taken from the schedule to the original judgment — in this research the various sources record the ranges inconsistently, and we do not assert them here.

Why this is useful for Chinese parties

In practice, a person arrested for overstaying a visa is often held temporarily in a police station or some "immigration management centre", and whether such a place has been formally designated by the Director-General is something the party has no way of knowing, and rarely anyone asks.

Rahim turned this into a question you can claim on. In judicial review or a damages action, the first request is: require the Department to produce the written basis on which the place was designated by the Director-General under s 34(1).

Part 2 — A Checklist for the Detention Procedure

A battlefield map pieced together from four SCA judgments.

Between 2008 and 2014 the Supreme Court of Appeal dealt with a batch of detention and deportation cases, each exposing, from a different angle, a crack in the Department's procedure. Lined up together, they form a checklist you can work through item by item.

§ Five grounds of attack you can check one by one

1. Was a statutory warrant issued? Was notification given? Was a designated port used? Jeebhai v Minister of Home Affairs [2009] ZASCA 35; 2009 (5) SA 54 (SCA): the arrest, detention and deportation of a Pakistani national. The court held the arrest was lawful (a s 34(1) arrest need not be preceded by a s 8 procedure), but the detention and deportation were unlawful — no statutory warrant was issued, notification of deportation-related rights was delayed, and deportation was not through a designated port of entry. A defect in any one of the three is a ground of attack.
2. Is it a "blanket policy"? Ulde v Minister of Home Affairs [2009] ZASCA 34; 2009 (4) SA 522 (SCA): the power of arrest and detention under s 34(1) is a discretion, not a duty, and must be exercised in favorem libertatis. The immigration officer applied a blanket policy and ignored the significant fact that a magistrate's court had already granted bail — the detention was unlawful.
3. Has it exceeded 30 days? Is there a court warrant? Arse v Minister of Home Affairs [2010] ZASCA 9; 2012 (4) SA 544 (SCA): detention beyond 30 days without a court warrant is unlawful; and "sojourn" does not include the period in custody; and an unlawfully detained person may not be released on conditions.
4. Was an intention to seek asylum expressed? Bula v Minister of Home Affairs [2011] ZASCA 209; 2012 (4) SA 560 (SCA): once an intention to seek asylum is expressed, the person is protected by the Refugees Act; its genuineness is for the RSDO to assess, and the court may not examine its bona fides at the detention stage. Nineteen Ethiopians were declared unlawfully detained, released immediately, and their deportation restrained.
5. Is an asylum appeal still pending? Director-General: Home Affairs v Dekoba [2014] ZASCA 71; 2014 (5) SA 206 (SCA): a rejection by the Refugee Appeal Board without the party having a genuine hearing is invalid; the party remains an asylum-seeker, entitled to have the permit restored (valid until the conclusion of the appeal and any subsequent judicial review).

Part 3 — Li: One Act That Lost the Whole Case

Case file

• Case name: Li and Others v Senior Immigration Officer Pretoria and Others
• Citation: (42590/2012) [2012] ZAGPPHC 163
• Court: North Gauteng High Court, Pretoria | Mothle J
• Date: 10 August 2012
• Parties: Eleven Chinese nationals, who entered on 90-day visitor's visas in 2011-2012, sponsored by a mining company; after their renewal was refused in April 2012 they overstayed
• Situation: Arrested and held at the Lindela Repatriation Centre pending deportation
• Outcome: Application dismissed, with costs

This is the only case among the Chinese-party matters covered so far in this series that was lost. And it was lost in an extremely specific way, worth every Chinese person in South Africa remembering.

The issue: what that Form 1 said

The Department served on them a statutory Form 1 under s 8(1). The function of that form is to notify the party that they have been declared an illegal foreigner, and of the review right and time limit they enjoy under s 8(1).

But the wording on the form was written as "decision to deport you". The applicants argued that this conflated two distinct things — being declared an illegal foreigner under s 8 and being deported under s 34 are two separate procedures, each with its own remedy. The ambiguous wording left them unable to know which decision they had a right to seek review of.

The court agreed that the wording of the form might be misleading. Then it dismissed their application.

The reason: they refused to acknowledge receipt

Mothle J held that, because the applicants refused to acknowledge receipt of the notice, they could not claim to have "not been informed" — because the fact of not being informed was of their own making.

The arrest and detention were accordingly held lawful, the application dismissed, and costs awarded against them.

An instinctive act of self-protection — "I won't sign, I won't admit it" — was read in law as a waiver of the right to raise the procedural defect.

The correct approach

Five actions when receiving a document from the Department:

1. Acknowledge receipt, but note your reservation on the spot. Beside your signature, write "received but contents not admitted", or note in Chinese "acknowledging receipt of this document only, not indicating agreement with its contents". Acknowledging receipt confirms receipt, not agreement.
2. Ask for a copy, and photograph it for your records. The copy should bear the date of service. That date determines when the ten working days under s 8(1) / s 8(4) begin to run, and when the 180 days under PAJA begin to run.
3. Request Chinese interpretation in writing, on the spot. If you cannot understand the contents of the document because of language, ask immediately for interpretation and request that it be placed on record. (See the Chen case in Part 6: the standard of interpretation at port questioning should be on a par with criminal proceedings.)
4. Note the name and position of the issuing official. The power to decide under s 8 lies with the Director-General, and the power to decide a s 8(6) appeal lies with the Minister. Who issued the document is the starting point for later attacking the delegation of authority (the Mushore case in Part 3).
5. Contact a lawyer immediately; do not wait until the day before deportation. Custody at Lindela is counted in days. The parties in Bula, Arse and Dekoba all obtained their release orders by bringing urgent applications while still in custody.

Part 4 — From Rahim to Li: The Fork Between Two Endings

The difference between the two lines falls almost entirely on procedural acts, not on the substantive merits. The eleven parties in Li were not necessarily worse off than the nineteen Ethiopians in Bula; they simply, in the first few minutes, made a choice that was instinctively right and legally fatal.

Practical points for parties

• Always acknowledge receipt, always note your reservation. This is the most important sentence in this article. Refusing to acknowledge receipt does not void the document; it only loses you the standing to make an argument.
• Ask clearly: where am I being held? Has this place been designated by the Director-General? An undesignated place means unlawful detention, and a claim (Rahim).
• Record the moment of arrest to the hour. The 48-hour court appearance, the 30-day ceiling and the 90-day total all run from that moment.
• Distinguish "declared an illegal foreigner" (s 8) from "deportation" (s 34). They are different decisions, each with its own remedy. The Department's form wording that conflates the two is itself a ground of attack — provided you have kept the standing to raise it.
• Unlawful detention can be claimed for, and the damages are calculated by the day. Do not give up because "I'm leaving anyway" — a deportation record will follow you for years, and a judgment declaring the detention unlawful can be important material for a future application.
• Act while still in custody. Every successful case in this article was an urgent application brought while the party was still detained.

The law does not treat something as not having happened simply because you refuse to sign. It only records this: at the moment the clock should have started, you chose not to let it run.

Sources

• Minister of Home Affairs v Rahim and Others 2016 (3) SA 218 (CC); 2016 (6) BCLR 780 (CC); [2016] ZACC 3 (18 February 2016). saflii.org/za/cases/ZACC/2016/3.html
• Li and Others v Senior Immigration Officer Pretoria and Others (42590/2012) [2012] ZAGPPHC 163 (10 August 2012). saflii.org/za/cases/ZAGPPHC/2012/163.html
• Jeebhai and Others v Minister of Home Affairs and Another [2009] ZASCA 35; 2009 (5) SA 54 (SCA); [2009] 3 All SA 103 (SCA)
• Ulde v Minister of Home Affairs and Another [2009] ZASCA 34; 2009 (4) SA 522 (SCA)
• Arse v Minister of Home Affairs and Others [2010] ZASCA 9; 2012 (4) SA 544 (SCA)
• Bula and Others v Minister of Home Affairs and Others [2011] ZASCA 209; 2012 (4) SA 560 (SCA)
• Director-General: Home Affairs and Another v Dekoba [2014] ZASCA 71; 2014 (5) SA 206 (SCA)
• Immigration Act 13 of 2002 ss 7, 8(1), 34(1), 41, 49; Constitution ss 10, 12
• Note: the exact damages figures in Rahim are recorded inconsistently across public sources; check the schedule to the original judgment before relying on them.

Disclaimer

The judgments analysed in this article are all reported South African decisions in the public domain, available in full on SAFLII (www.saflii.org); the parties' names appear as set out in the published judgments and are not client information of this firm. This article is general legal information and academic discussion. It does not constitute legal advice on any particular matter, nor does it create an attorney-client relationship. Case law may be overturned or distinguished by later decisions, and statutes may be amended; before relying on anything here, check the original text and the latest developments, or seek the advice of a practising attorney on your particular case. Date checked: 27 August 2026.

June Luna Immigration Attorneys Inc. — Cape Town. Immigration and administrative-law attorneys. Visa-refusal appeals (s 8(4) / s 8(6)) · overstay and "undesirable" relief · detention and deportation · permanent residence and naturalisation · PAJA judicial review and mandamus.