A Nigerian national facing deportation has been released from detention after the Western Cape High Court on Thursday found that authorities failed to follow the law in holding him.
Acting Judge Montzinger ruled that Bernard Egbuna Mba’s continued detention at Somerset West Police Station was unlawful, despite him being in the country without valid documentation.
Mba, who has lived in South Africa since 2005, is married to a South African citizen and has three minor children.
He was arrested at his home on February 8 following a domestic dispute and remained in custody after police were unable to verify his immigration status.
He appeared in the Somerset West Magistrate’s Court on February 9 and a day later, pleaded guilty to assault and a violation of the Immigration Act.
He was fined R 2 000 for the immigration offence and received a wholly suspended R2 000 fine for assault.
In addition, the court ordered his deportation and detention pending removal from the country.
However, the High Court found that Home Affairs failed to produce a valid detention warrant, did not notify Mba of his rights in writing and provided no proof that an immigration officer had exercised the required discretion before detaining him.
Judge Montzinger said detention for deportation is not automatic and must follow strict legal procedures, warning that authorities appeared to rely on a standard practice rather than applying the law on a case-by-case basis.
“Every deprivation of liberty is presumptively unlawful, and the burden rests on the State to justify detention,” he said.
Even though Mba admitted his visa had expired in 2023 and he had not regularised his stay, the court said he still has constitutional rights and cannot be deprived of his liberty unlawfully or without proper legal grounds.
The application to secure his release and halt his deportation was opposed by the Director of Public Prosecutions in the Western Cape and the Minister of Home Affairs.
However, the court ordered his immediate release and suspended his deportation pending a separate legal challenge in which Mba is seeking to have his guilty plea, conviction, sentence and deportation order reviewed and set aside.
If unsuccessful, he must leave South Africa within 10 days or face deportation.
You explained it in such a relatable way. Well done!
It’s refreshing to find something that feels honest and genuinely useful. Thanks for sharing your knowledge in such a clear way.
Your breakdown of the topic is so well thought out.
You’re doing a fantastic job with this blog.
Very relevant and timely content. Appreciate you sharing this.
eyolwqthxwjoivvlezkdgknldgossr