Spot checks on suspected foreigners are legal, but must be constitutional

12 Oct 2022

While nationality spot checks by police are indeed permitted, they can negatively impact on the fundamental rights to liberty and privacy and in certain cases, the right to human dignity. Procedural safeguards are therefore of absolute importance.

The power to conduct spot checks is an important part of combatting crime. This authority, however, needs to be exercised in a manner that is mindful of how it is used. For example, airport security works effectively because everyone is subjected to the same scan and/or search.

Where this universal approach is not possible or desirable this discretionary power needs to be implemented in accordance with existing substantive and procedural protections. This is necessary in order to give effect to the constitutional vision of establishing a society based on equality, social justice and fundamental human rights.

Minister of Home Affairs Aaron Motsoaledi’s recent statement concerning the power of police to spot-check suspected foreigners has attracted significant attention. While the minister has since clarified these statements, given how fraught this area of law enforcement is, there is a need for further explanation and discussion.

The specific policing powers governing searches of non-nationals is governed by the Immigration Act 13 of 2002. Under section 41 of the Immigration Act, a police officer may request that an individual identify their residential status. If on reasonable grounds, the police officer is not satisfied that the person is legally entitled to be in the Republic, the officer may take such person into custody without a warrant.

While spot checks are therefore indeed permitted, they can negatively impact the fundamental rights to liberty and privacy and in certain cases, the right to human dignity. Procedural safeguards are therefore of absolute importance as they serve to guard against unwarranted and disproportionate infringements upon human rights.

The overarching procedural framework informing this protection is based upon four key principles: these spot checks must be based in law; there must be an objective motivation for them; they must be conducted in a non-discriminatory manner; and they must not violate other fundamental rights such as the rights to dignity and privacy.

The South African Police Service (SAPS) has a standard operating procedure for the arrest and detention of undocumented persons. The emphasis of the existing procedure, according to testimony given by the SAPS to the South African Human Rights Commission (SAHRC), is to avoid confrontation and to deal with matters efficiently.

The Regulations for the Immigration Act further clarify that a police officer should assist in verifying the identity of a person by accessing relevant available documents, contacting relatives or other persons who could prove such identity, accessing departmental records and providing the means for the person to obtain documents to confirm their identity.

However, there is still a need for further detailed guidance and training of SAPS members when it comes to the policing of non-nationals.

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This is due to the fact that foreigners are more likely to experience discrimination through profiling and targeting, while SAPS members often lack the requisite knowledge of immigration processes and frequently fail to accept documents that are genuine.

There is also a lack of understanding in terms of the difficulties people face in attempting to obtain documents from the ill-functioning Department of Home Affairs (DHA), particularly for asylum seekers.

There are furthermore, high levels of corruption and intimidation that characterise the over-policing of foreign nationals. For example, the Independent Police Investigative Directorate (Ipid) has reported widespread extortion and bribery involving SAPS officers and non-nationals.

Giving the SAPS unfettered discretion in this area can therefore potentially open the floodgates for further misuse and corruption. This has been underscored by research which indicated that the profiling of non-nationals based on perceptions of high rates of involvement in criminality “has been a significant contributor to the breakdown of the relationship between the SAPS and non-nationals”.

While seemingly harmless to some, spot checks also need to be understood within the context of the detention continuum. This continuum begins with stopping an individual and can continue to the arrest of the individual right through to the stage of pre-trial detention.

At each intervention, the requisite human rights framework applies. Both national and international law requires that states protect, promote and fulfil the rights to equality, liberty, human dignity and access to justice throughout this continuum.

While the primary responsibility to enforce the Immigration Act lies with the DHA, the supportive role played by the SAPS needs to be regulated in accordance with existing human rights.

Where a police officer has failed to comply with the procedural and substantive requirements during a spot check, such conduct can result in a civil claim for damages being lodged against the minister of police.

Failure to comply also leads to a loss of public confidence in the police. While this failure to comply with the law has the potential to undermine social cohesion and human rights in general, it is of the utmost importance that we also recognise the specific heightened vulnerability of foreign nationals who are stopped by the police — particularly in the light of widespread xenophobic violence, the risk of extortion and the traumatising psychological impact of being targeted and profiled.

As immigration violations are an administrative offence, the policing role needs to be more clearly understood and managed. Off-the-cuff remarks by politicians can also be dangerous, particularly in light of the need for effective leadership in the fight against xenophobia.

There is therefore a need to infuse a human rights-based approach into discussions on the policing of non-nationals. In addition, SAPS needs to apply its mind to an overarching policy framework to guide the SAPS’ approach to providing services to non-nationals, as well as detailed guidelines on how to effectively prevent, detect and respond to xenophobic violence.

This is key to protecting fundamental human rights, improving day-to-day policing practices and lowering the number of civil claims against SAPS.

The absence of such a framework speaks volumes and is not likely to be missed when South Africa makes its report to the Universal Periodic Review in Geneva. DM

Dr Tarryn Bannister is Project and Research Officer at the African Policing Civilian Oversight Forum.

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