FOR IMMEDIATE RELEASE
28 November 2024
Tshwane, South Africa – The Department of Social Development (DSD) released a media statement on 27 November 2024, regarding the 96 undocumented children who had been arrested and detained as part of the illicit miners in Khuma Stilfontein. Noting their obligations in terms of international law and the Constitution, DSD stated that they will seek to place all identified and legally declared undocumented children in accommodation and provide for their basic needs while they are still waiting to be processed in terms of the Child Justice Act. This, the statement reads, would be based on the outcomes of the court proceedings and will conduct a comprehensive assessment to ascertain if they are indeed children in need of care and protection.
The Centre for Child Law (“CCL”) notes with concern the increasing numbers of undocumented migrant children involved in dangerous and life-threatening illicit mining operations across South Africa. In the backdrop of dire child poverty, exacerbated by state-sanctioned austerity measures across Southern Africa, children of all ages are becoming more desperate to survive and/or being exploited by adults.
In light of the high political and social sensibilities around this issue, CCL wishes to remind the state, including the Department of Social Development, Department of Home Affairs, Department of Justice, South African Police Services, and other law enforcement bodies, that children’s rights and their best interests are paramount in all situations for all children within South Africa. It is therefore important that both international and domestic legal obligations and best practices in respect of children, particularly those who are in need of care and protection, are adhered to.
Immigration Amendment Act of 2024
Last week, on 22 November 2024, CCL made written submissions on the amendments to the Immigration Amendment Bill [B8—2024] (“Bill”), which focused on what should happen when law enforcement encounters illegal migrants.
The Bill seeks to revise provisions relating to the arrest and detention of illegal migrants for purposes of deportation to align these provisions with constitutional principles and to provide for matters connected therewith in the Immigration Act 13 of 2002.
The Bill did not, however, provide for how undocumented child migrants should be dealt with. The CCL’s submissions pointed out the provisions of the Children’s Act 38 of 2005, which provide that these children must be dealt with as children in need of care and protection. In light of this, the Immigration Act amendments must make it clear that children are dealt with in terms of the Children’s Act as amended (2022).
Accordingly, the CCL proposed the insertion of sections 34(1B)(a) and 34(1B)(b), stating that:
“34(1B)(a): Where the alleged illegal foreigner is a child, the child must not be detained but must be dealt with as a child in need of care and protection in terms of section 150(1)(j) of the Children’s Act 38 of 2005; and
34(1B)(b): where the alleged illegal foreigner alleges that they are a child and no reasonable alternative confirmation of the person’s age is available, then the person must be referred for an age assessment in terms of section 48(2) of the Children’s Act 38 of 2005”.
We believe that these provisions outline a detailed process to be followed for children who are alleged to be in South Africa irregularly. We hope that the Immigration Act will be amended accordingly, taking into account the Children’s Act.
The CCL hopes that all the relevant stakeholders will assist the undocumented migrant children in line with their legal obligations.
See CCL’s Submissions on the Immigration Amendment Bill.
End.
For more information and media queries, please contact:
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Karabo Ozah Director, Centre for Child Law 012 420 4502
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Fortunate Mongwai Candidate Attorney, Centre for Child Law 012 420 4502
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