"The detention of refugees and migrants is carried out in an unlawful manner," said Kaajal Ramjathan-Keogh, head of the refugee and migrant rights programme at Lawyers for Human Rights, on Wednesday.
"Despite repeated engagement with [the department of home affairs] we've encountered a lot of difficulty in releasing people without resorting to the courts," said Ramjathan-Keogh.
She was speaking at the release in Johannesburg of the Monitoring Detention in South Africa report by the organisation.
Lawyers for Human Rights attorney Thandeka Duma said home affairs "seemed to have dysfunctional internal systems".
The department's spokesperson Ronnie Mamoepa declined to comment on the report as the department had not yet read it.
"We've not had sight of that report to enable us to comment intelligently," Mamoepa said.
"However, the department remains committed to discharging its mandate within the framework of the law, the Constitution and the framework of international obligations."
Duma said that under the Refugees Act, asylum seekers were allowed to move freely while their applications were being considered. They were allowed to remain in the country until the entire application process, including appeals, was exhausted.
The department in many cases was only using the Immigration Act, which allowed for the detainment of undocumented migrant, in contravention of previous court rulings.
"Courts ruled [home affairs] will not read the Immigration Act in isolation," Duma said.
She said the department maintained that it was following the law.
"However, this claim is totally contradicted by the evidence in this report and elsewhere," Duma said.
She said attempts to intervene for the release of improperly detained migrants and refugees with the department had been unsuccessful, forcing Lawyers for Human Rights to seek recourse in the courts.
In the year covered by the report, the organisation won 18 of its cases and secured the release of 41 improperly detained people, a win rate of about 95%.
The non-governmental organisation was also awarded costs – although less than it believed was owed – and this was a significant cost to the state.
"We are of the view that such costs are a waste of taxpayer money," Duma said.
"The court should hold home affairs officials personally responsible for court orders that are not followed," Duma said.
She said organisation, along with many other NGOs, had been denied access to immigration facilities such as the Lindela repatriation centre in Krugersdorp and was only able to meet clients outside it.
"We are also concerned by the continued lack of independent monitoring in immigration detention facilities."
She said the South African Human Rights Commission (SAHRC) was the only body allowed in and had not released a report on conditions inside Lindela since 2000.
The commission's legal consultant Sugne Niemann said the organisation did inspect Lindela earlier this year and made regular visits.
She could not comment on whether the SAHRC would release a report on conditions inside the repatriation facility, referring questions to the commission's provincial office.
The SAHRC's provincial office could not immediately provide comment on their visits to Lindela. – Sapa