Nigerian national released from unlawful detention by Western Cape High Court
A Nigerian national, Bernard Egbuna Mba, has been granted immediate release from unlawful detention by the Western Cape High Court, which ruled that his continued detention under the Immigration Act was unjustified. This decision follows Mba's arrest amid domestic disputes and highlights the complexities surrounding immigration status and legal rights in South Africa.
Image: David Ritchie / File
A Nigerian national, who cannot produce anything authorising his current presence in the country, has been released with immediate effect from unlawful detention.
The ruling was made by the Western Cape High Court after lower court magistrate Simlah at the Somerset West Magistrate's Court ordered for Bernard Egbuna Mba’s detention pending deportation as he was in contravention of Section 34(1) of the Immigration Act.
Mba’s current detention is administrative and is not detention in terms of a sentence of imprisonment.
This comes after Mba was arrested at his home in February by members of SAPS following a complaint of assault laid by his wife arising out of a domestic dispute.
“On February 9, 2026, in the course of processing (Mba’s) detention, the police were unable to verify his immigration status. The DPP’s (Director of Public Prosecutions) office at Somerset West then sought confirmation from the Stellenbosch Inspectorate Unit of Home Affairs. An immigration officer, Ms Sibabalwe Mazwayi, established from departmental records that Mba’s asylum-seeker application had been rejected, and since November 15, 2023, the applicant’s life-partner visa has expired,” the judgment detailed.
Western Cape High Court Acting Judge, Adrian Montzinger, said the man’s continued detention cannot be sustained despite the magistrate’s submissions in her affidavit that, following the granting of a deportation order, continued detention is “axiomatically warranted”.
Answering to the initial criminal charges he faced, Mba pleaded guilty to the assault charges, and he was immediately sentenced to a fine of R2,000 or six months’ imprisonment, wholly suspended for a period of two years on customary conditions.
On the charge of contravening Section 49(1)(a) of the Immigration Act, Mba was sentenced to a fine of R2,000 or 12 months’ imprisonment.
He paid that fine on the same day.
“In addition to the sentences imposed, the magistrate made an order that he be deported from the Republic (of South Africa), that he be detained at Macassar SAPS pending deportation, and that the Director-General of Home Affairs be authorised to execute the order. As it turned out, Mba was not transferred to Macassar but remained in detention at Somerset West.
“The reality of being deported spurred him into action, and on February 20, 2026, the applicant launched the present application (to be released from administrative detention pending the determination of his immigration status),” the judgment noted.
Mba has resisted the characterisation of himself as an illegal foreigner.
Acting Judge Montzinger, in judgment, said: “Mba’s own version puts him outside the law. He admits that his life-partner visa expired on November 15, 2023. He says he has been trying since then to regularise his stay but has not succeeded. He also says he applied for a new spousal visa and that the application was declined, and that he was saving up to retain an immigration agent to assist him with a new application. He cannot produce anything authorising his current presence in the Republic.
“He submits that he never intended to remain in the country illegally. However, that is not what the Immigration Act requires. Section 1 defines an illegal foreigner by reference to the absence of authorising documentation, not by reference to the foreigner’s state of mind. On the applicant’s own account, he has held no valid visa or permit and has therefore been an illegal foreigner in the Republic since November 15, 2023.”
Acting Judge Montzinger’s decision to release Mba was backed up by case law: “As Ulde confirms, the power to detain pending deportation is provided for in Section 34, not Section 32. The power is discretionary, not automatic, and it must be exercised by an immigration officer in respect of each case.
“A standard practice of seeking detention orders from magistrate courts on the strength of a deportation order is not the exercise of statutory discretion. It is, in Ulde’s language, the implementation of a blanket policy. It is the very thing the SCA held to be unlawful.”