ENFORCEMENT AND MONITORING
32. Illegal foreigners

(1) Any illegal foreigner shall depart, unless authorised by the Director-General in the prescribed manner
to remain in the Republic pending his or her application for a status.

(Section 32(1) substituted by section 33 of Act 19 of 2004)

(2) Any illegal foreigner shall be deported.

33. Inspectorate

(1) An inspectorate is hereby established and shall consist of the persons, including immigration officers,
determined by the Minister.

(Section 33(1) substituted by section 34(a) of Act 19 of 2004)

(2) (a) The Minister shall appoint the head of the inspectorate.

(b) The Director-General shall appoint immigration officers and other persons required to exercise
the functions of the inspectorate.

(c) The Minister may prescribe-

(i) the procedure to be followed in the appointment of immigration officers or categories of
immigration officers;

(ii) the requirements for the appointment contemplated in subparagraph (i); and

(iii) the allocation of functions to immigration officers or categories of immigration officers.

(Section 33(2) substituted by section 34(b) of Act 19 of 2004)

(3) The inspectorate shall investigate any matter falling within the scope of this Act, subject to the
directions of the Minister, and shall in the performance of its functions follow such procedure as may
be prescribed.

(4) An immigration officer may, for the purposes of this Act –

(a) at any time before the commencement or in the course of an investigation conduct an
inspection in loco in accordance with subsections (5) and (9);

(b) by notice in writing call upon any person who is in possession of or has the custody of or control
over any thing which in the opinion of the Director-General is relevant to the investigation to
produce such thing, and the Director-General may inspect and retain any thing so produced for
a reasonable time; and

(c) by notice in writing call upon any person to appear before the Director-General and to give
evidence or to answer questions relevant to the subject matter of the investigation:

Provided that any of such notices shall specify the time when and the place where the person to whom
it is directed shall appear, be signed by an immigration officer, be served by an immigration officer or a
sheriff by delivering a copy thereof to the person concerned or by leaving it at such person’s last
known place of residence or business, and shall specify the reason why the thing is to be produced or
the evidence is to be given.

(Section 33(4) substituted by section 34(c) of Act 19 of 2004)

(5) In the pursuance of this Act, an immigration officer may obtain a warrant to –

(a) enter or search any premises for a person or thing or to make inquiries, including the power to –

(i) examine any thing found in or upon such premises;

(ii) request from the person who is in control of such premises or in whose possession or
under whose control any thing is when it is found, or who is upon reasonable grounds
believed to have information with regard to such thing, an explanation or information; and

(iii) make copies of or extracts from any such thing found upon or in such premises;

(b) apprehend an illegal foreigner, subject to section 34(1); or

(c) after having issued a receipt in respect thereof, seize and remove documentation or any other
thing which –

(i) is concerned with or is upon reasonable grounds suspected of being concerned with any
matter which is the subject of any investigation in terms of this Act; or

(ii) contains, or is on reasonable grounds suspected to contain, information with regard to
any such matter,

provided that –

(aa) any thing so seized shall be returned in good order as soon as possible after the purpose
of its seizure has been accomplished; and

(bb) a person from whom a book or document has been taken shall be allowed reasonable
access, including the right to make copies at his or her expense.
(6) A warrant referred to in subsection (5) shall be issued by a magistrate of a Court which has jurisdiction
in the area where the premises in question are situated, and only if it appears to the magistrate from
information on oath that there are reasonable grounds for believing that a thing mentioned in
subsection (5) is upon or in such premises, and shall specify which of the acts mentioned in
subsection (5) may be performed thereunder by the person to whom it is issued.

(7) A warrant issued in terms of this section shall be executed by day unless the magistrate who issues
the warrant authorises its execution by night at times which shall be reasonable, and any entry upon
or search of any premises in terms of this section shall be conducted with strict regard to decency and
order, including –

(a) a person’s right to, respect for, and the protection of, his or her dignity;

(b) the right of a person to freedom and security; and

(c) the right of a person to his or her personal privacy.

(8) A person executing a warrant in terms of this section shall immediately before commencing with the
execution –

(a) identify himself or herself to the person in control of the premises, if such person is present, and
hand to such person a copy of the warrant or, if such person is not present, affix such copy to a
prominent place on the premises; and

(b) supply such person at his or her request with particulars regarding his or her authority to
execute such a warrant.

(9)

(a) An immigration officer may, without a warrant, enter upon any premises, other than a private
dwelling, and exercise the powers referred to in subsection (5)(a) and (c) –

(i) if the person who is competent to do so consents to such entry, search, seizure and
removal; or

(ii) if he or she upon reasonable grounds believes that –

(aa) the required warrant will be issued to him or her in terms of subsection (5) if he or
she were to apply for such warrant; and

(bb) the delay caused by the obtaining of any such warrant would defeat the object of
the entry, search, seizure and removal.
(b) Any entry and search in terms of paragraph (a) shall be executed by day, unless the execution
thereof by night is justifiable and necessary.

(10)

(a) Any person who may on the authority of a warrant issued in terms of subsection (5), or under
the provisions of subsection (9), enter upon and search any premises, may use such force as
may be reasonably necessary to overcome resistance to such entry or search; and

(b) No person may enter upon or search any premises unless he or she has audibly demanded
access to the premises and has notified the purpose of his or her entry, unless such person is
upon reasonable grounds of the opinion that any thing may be destroyed or a person put at risk
of bodily harm if such access is first demanded and such purpose is first notified.

(11) If, during the execution of a warrant or the conducting of a search in terms of this section, a person
claims that a thing found on or in the premises concerned contains privileged information and refuses
its inspection or removal, the person executing the warrant or conducting the search shall, if he or she
is of the opinion that the thing contains information which is relevant to the investigation and that such
information is necessary for the investigation, request a person designated by a Court which has
jurisdiction to seize and remove that thing for safe custody until a Court has made a ruling on the
question whether the information concerned is privileged or not.

(12) A warrant issued in terms of this section may be issued on any day and shall be in force until –

(a) it is executed;

(b) it is cancelled by the person who issued it or, if such person is not available, by a person with
similar authority;

(c) the expiry of one month from the day of its issue; or

(d) the purpose for the issuing of the warrant has lapsed,

whichever may occur first.

(13) In consultation with the Minister and through diplomatic channels, the Director-General may obtain
permission from the relevant authority of a foreign country to receive evidence or gather information in
or from that country.

(Section 33(13) amended by section 47 of Act 19 of 2004)

(14) When exercising powers under this section, an immigration officer shall clearly identify him or herself
as such by means of adequate identification.
34. Deportation and detention of illegal foreigners

(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or
her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or
cause him or her to be deported and may, pending his or her deportation, detain him or her or cause
him or her to be detained in a manner and at a place determined by the Director-General, provided
that the foreigner concerned –