How Long Can They Hold You? The s 34(1) Constitutional Challenge and the 90-Day Cap

How Long Can They Hold You? The s 34(1) Constitutional Challenge and the Rare 2023 Continuation Order

Lawyers for Human Rights [2017] ZACC 22 | Ex parte Minister of Home Affairs [2023] ZACC 34. Forty-eight hours, 30 days, 90 days — and how an unconstitutional provision lived on for another six years.

Section 34(1) of the Immigration Act permits an immigration officer to arrest an "illegal foreigner" without a warrant and to detain that person pending deportation — for up to 30 days, extendable by a magistrate to 120 days. Throughout, the detainee need not be brought before a judge, and enjoys no automatic judicial review.

On 29 June 2017, the Constitutional Court declared two of its subsections unconstitutional. But the story did not end there. Parliament failed to complete the amending legislation within the 24-month suspension period, and so in 2023 the Constitutional Court had to make a rare order of "supplementary relief", prolonging the life of an already-unconstitutional provision and writing down the rules of the transitional period itself.

This is the best sample for understanding "what happens after unconstitutionality" in South Africa.

Part 1 — 2017: Two Provisions Declared Unconstitutional

Case file

• Case name: Lawyers for Human Rights v Minister of Home Affairs and Others
• Citation: 2017 (5) SA 480 (CC); 2017 (10) BCLR 1242 (CC); [2017] ZACC 22
• Court: Constitutional Court | CCT 38/16
• Judge: Jafta J writing, unanimous
• Date: 29 June 2017
• Provisions challenged: Immigration Act 13 of 2002 s 34(1)(b) and s 34(1)(d)
• Outcome: Unconstitutional and invalid, suspended for 24 months; the State's appeal dismissed with the costs of two counsel

What was challenged were two specific defects, not the detention regime itself.

§ The two grounds of unconstitutionality the court found

1. Absence of automatic judicial review. Section 34(1)(b) permitted detention until the expiry of 30 days, with no automatic judicial oversight before then. Section 12(1) of the Constitution guarantees freedom and security of the person and forbids arbitrary deprivation without just cause; holding a person for a full 30 days without any judicial involvement cannot pass that test.
2. The detainee had no right to appear in person. Section 34(1)(d) permitted a magistrate to extend detention in the absence of the detainee. Section 35(2)(d) of the Constitution expressly gives a person deprived of freedom the right to appear in person. Replacing personal appearance with a written application deprives the detainee of the opportunity to be heard and to answer.

The court declined to "read in" or "sever"

In South African constitutional remedies, courts often repair a provision by "reading in" or "severance", avoiding invalidating the whole provision. But here the court held that the remedy required a whole scheme of procedural design — how often is review to occur? by whom? on what standard? — matters belonging to the legislature, which the court should not undertake in its stead. It therefore declared the provisions invalid and suspended the declaration for 24 months.

During the transitional period, the court ordered that an undocumented foreigner, once arrested, must be brought before a court within 48 hours (or the next court day); and that a compliance report be filed within 60 days.

Part 2 — 2023: An Order Prolonging the Life of an Unconstitutional Provision

Case file

• Case name: Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home Affairs and Others
• Citation: 2024 (2) SA 58 (CC); 2024 (1) BCLR 70 (CC); [2023] ZACC 34
• Court: Constitutional Court | CCT 38/16 (same case number)
• Judge: Majiedt J writing, unanimous
• Date: 30 October 2023
• Legal basis: Constitution s 172(1)(b) (a court may make any order that is just and equitable)

The 24-month suspension expired in June 2019. Parliament had not completed the amendment. That produced an awkward situation: the provisions were invalid, but detention was still occurring, and there was no law governing how it should be done. The Department of Home Affairs itself returned to the Constitutional Court seeking directions.

The court granted supplementary relief under section 172(1)(b) of the Constitution. It did not "revive" the two subsections; instead it wrote down a transitional procedure of its own:

Source: Ex parte Minister of Home Affairs; In re LHR [2023] ZACC 34. Note the difference from the 2017 judgment: the original provision allowed extension to 120 days, whereas the transitional rule brings the ceiling down to 90 calendar days.

Check the current position

The 2023 order gave Parliament 12 months, i.e. until the end of October 2024. As at the date this article was checked (27 August 2026), we have not been able to confirm whether the amending legislation has been completed and is in force. Before relying on detention limits in a particular case, check the latest text of the Immigration Act and any subsequent Constitutional Court order.

Part 3 — Reading the Two Judgments Together

Three forms of constitutional remedy.

When the South African Constitutional Court deals with an unconstitutional provision, it broadly has three approaches. This series has now encountered an example of each; placed side by side, they show how the court chooses between "deference to Parliament" and "protection of the party".

From "suspension" to "retrospectivity": four gears of remedial intensity

• 2017 — LHR v Minister of Home Affairs [2017] ZACC 22. Declaration of invalidity + 24-month suspension. Time given to Parliament to amend, with the court setting only minimal safeguards for the transitional period (brought before a court within 48 hours). Result: Parliament missed the deadline, and a legal vacuum arose.
• 2023 — Ex parte Minister of Home Affairs [2023] ZACC 34. Supplementary relief. When the suspension expired without legislation, the court, under s 172(1)(b), wrote down a complete transitional procedure of its own and gave a further 12 months.
• 2023 — Scalabrini v Minister of Home Affairs [2023] ZACC 45. Immediate invalidity + retrospectivity. The "deemed abandonment" clauses in ss 22(12) and 22(13) of the Refugees Act were declared unconstitutional, with no suspension, retrospective to 1 January 2020. The court also set aside the part of the High Court order that had required legislative correction.
• 2025 — Democratic Alliance v Minister of Home Affairs [2025] ZACC 8. Full retrospectivity to the date the provision was enacted. Section 6(1)(a) of the Citizenship Act was declared unconstitutional, retrospective to 6 October 1995; anyone who lost citizenship under that provision is deemed never to have lost it. (Detailed in Part 12.)

The pattern is roughly this: where the defect in a provision is one of insufficient procedural design, requiring a policy choice by the legislature, the court tends to suspend; where it is one of having no legitimate purpose at all, and where suspension would allow the unconstitutional state of affairs to continue harming the party, the court tends towards immediate invalidity, even retrospectivity.

Part 4 — The Practical Significance for Detainees

Five checks after being detained:

1. Confirm whether the place of detention is lawful. Section 34(1) requires the Director-General to designate the place of detention. Being held in a police cell that has not been designated makes the detention unlawful — even where the arrest itself was justified. This is the core of the Rahim case in the next article.
2. Count the 48 hours. Under the 2023 transitional order, after arrest a person must be brought before a court within 48 hours (or the next court day), and must appear in person. Failure to bring the detainee to court in time deprives the detention of its justification.
3. Check the two ceilings of 30 days and 90 days. The first period of detention must not exceed 30 days; the total after extension must not exceed 90 calendar days. Exceeding these is unlawful (see also Arse v Minister of Home Affairs [2010] ZASCA 9: detention beyond 30 days without a court warrant is unlawful).
4. Examine the procedural documents before and after arrest. Was a statutory warrant issued? Was the detainee informed of the rights relating to deportation? Was deportation through a designated port of entry? A defect in any one of these three may make the detention or deportation unlawful (Jeebhai v Minister of Home Affairs [2009] ZASCA 35).
5. If asylum has been expressed, the position is entirely different. 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 (Bula v Minister of Home Affairs [2011] ZASCA 209).

A discretion, not a duty

There is a further angle that is often overlooked: Ulde v Minister of Home Affairs [2009] ZASCA 34; 2009 (4) SA 522 (SCA) established that the power of arrest and detention under s 34(1) is a discretion, not a duty, and must be exercised in favorem libertatis (in favour of liberty). In that case the immigration officer applied a "blanket policy" and ignored the significant fact that a magistrate's court had already granted bail, and the detention was accordingly held unlawful.

In other words: "He is an illegal foreigner, so I must detain him" — that sentence is wrong in law.

Practical points for detainees

• The first thing to do when detained is to note the time. The precise moment of arrest determines when the 48 hours begins to run, and this is at present the easiest unlawfulness to prove.
• Ask clearly where you are being held, and ask for the written basis. Section 34(1) requires the place of detention to be designated by the Director-General; detention in an undesignated place is unlawful and gives rise to a claim.
• Do not assume "I'll be deported anyway, so I'll just endure a few days". Unlawful detention can be claimed for (next article), and a deportation record will affect visa applications for years to come.
• If you genuinely have grounds for asylum, you must express them clearly during detention. Once expressed, you are protected by the Refugees Act and deportation is blocked (Bula, Ruta). But note: developments in the case law in 2026 changed some of the rules — see Part 12.
• When an immigration officer says "policy requires detention", cite Ulde. A blanket policy is itself an improper exercise of discretion.
• Before relying on detention limits, always check the latest text of the Immigration Act. The 2023 transitional order gave Parliament 12 months; the progress of the amendment needs to be separately confirmed.

A law declared unconstitutional can go on living for many years in South Africa — first because the court gave Parliament time, then because Parliament did not use that time. In that gap, a person held at Lindela is not detained one day fewer because the provision is unconstitutional. That is why the 2023 order mattered: it filled the gap.

Sources

• Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480 (CC); 2017 (10) BCLR 1242 (CC); [2017] ZACC 22 (29 June 2017). saflii.org/za/cases/ZACC/2017/22.html
• Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home Affairs and Others 2024 (2) SA 58 (CC); 2024 (1) BCLR 70 (CC); [2023] ZACC 34 (30 October 2023)
• Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others 2024 (3) SA 330 (CC); 2024 (4) BCLR 592 (CC); [2023] ZACC 45
• Democratic Alliance v Minister of Home Affairs and Another 2025 (4) SA 323 (CC); 2025 (7) BCLR 779 (CC); [2025] ZACC 8
• Ulde v Minister of Home Affairs and Another [2009] ZASCA 34; 2009 (4) SA 522 (SCA); 2009 (8) BCLR 840 (SCA)
• Arse v Minister of Home Affairs and Others [2010] ZASCA 9; 2012 (4) SA 544 (SCA); 2010 (7) BCLR 640 (SCA)
• Bula and Others v Minister of Home Affairs and Others [2011] ZASCA 209; 2012 (4) SA 560 (SCA)
• Jeebhai and Others v Minister of Home Affairs and Another [2009] ZASCA 35; 2009 (5) SA 54 (SCA)
• Immigration Act 13 of 2002 s 34(1)(b), (d); Constitution ss 12(1), 35(2)(d), 36, 172(1)(b)

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.