Any junior policeman may arrest you at any time … and deport you as an illegal alien. You have no right to appeal not even in the new South Africa. Eddie Koch investigates the Aliens Act, a draconian apartheid throwback that’s still in force
Joas Baloyi (not his real name) knew how to make himself invisible. He used the back streets to reach work. He seldom left his room at night. If he was out, Joas made sure there was an alley or a nook or a crowd of people he could melt into at the sight of a policeman.
One Saturday in June he needed some food. The work permit in his passport had expired five days earlier. But this was the New South Africa and Joas felt intuitively that, if he was stopped, they would listen to reason. So he stepped into the main road and headed for the shops, which is when men from the police Aliens Unit detained him.
They bundled him into the back of a van with 18 other “illegal immigrants”, took the lot to the nearest police station for the weekend and then transferred them to John Vorster Square. There Joas’ name was placed on a list of illegal immigrants. He was told he would be taken by truck to Komatipoort and deported from there to Mozambique.
Joas was not allowed at any stage to use the telephone. He was unable to inform his employers that he had been arrested. He was not allowed to collect his clothes and other belongings. There was no way to appeal against these decisions. He would have contact with the outside world again only when he was back in Mozambique, and that would be too late.
Last year alone more than 100,000 illegal immigrants from Mozambique were caught and deported in this way. Senior officials at the Department of Home Affairs acknowledge foreigners with work permits and valid passports are sometimes included in the net.
There are records in the department’s files of South African citizens being detained on suspicion of being “aliens” and deported to Mozambique. The Black Sash dealt with a case where a man was arrested and evicted because, according to the arresting officer, “he walked like a foreigner”.
This is arrest and deportation by whim. The law that makes it possible is the Aliens Control Act of 1991, possibly the most draconian apartheid leftover on the statute books. It gives any police officer or immigration official the right to declare anyone suspected of being an illegal immigrant a “prohibited person”. That alien must then be removed from the country. It is up to the individual to prove his or her innocence.
The power this gives junior bureaucrats over the destinies of ordinary men and women was revealed during a visit to the Aliens Bureau of the Department of Home Affairs in Johannesburg. In one of the offices, on the third floor of a grey building in Commissioner Street, a well-built young man from Mozambique is stripped to the waist. He is shadow boxing while an immigration official questions him. “If it is true you can box and get a job in a gym here you must break this chair. Then maybe I’ll let you stay.”
I explain the predicament of Joas Baloyi to the official and ask if he can appeal against the impending deportation so that his work permit can be renewed. No, I am told. It is too late. He must now be sent home. Back in Mozambique he can apply for a visa from the trade mission in Maputo. But there is not guarantee he will get it.
There is no legal recourse against these kinds of decisions. Section 55 says “no court of law shall have any jurisdiction to review, quash, reverse, interdict or otherwise interfere with any act, order or warrant of the Minister, an immigration officer or master of a ship performed or issued under this Act”.
As I leave the office, a man in the corridor slips me a note. “Please phone this number,” he says. “Ask the man who answers the phone to tell the man who sells popcorn in the street outside the factory to tell my wife I will be going back this week.”
In the end Joas Baloyi escaped being deported. It involved using unusual methods, including the payment of an informal fine for not having his work permit renewed. I do not know if the popcorn vendor received my message about the fate of the man in the corridor.
Yet Joas’s intuition was correct. This is the New South Africa and there is a new constitution designed to protect people against this kind of treatment. It has a clause dealing with the concept of “administrative justice” that stands in stark contrast to the provisions of the Aliens Control Act.
The constitution says government officials must treat everyone humanely. If administrative action is taken, the affected individuals must be informed in writing and they have the right of appeal against any form of bureaucratic behaviour. The courts have the right to review the actions of officials and to set aside decisions that are unfair.
Do the police know they are administering a law that is in conflict with the constitution?
“If the law is unconstitutional it will have to be tested. At the moment the law is still there and it will have to be implemented. Full stop,” says Safety and Security ministry spokesman Craig Kotze.