BOMBSHELL: SA High Court Rules Magistrates Have NO POWER To Deport Foreigners – 6 Years Of Deportation Orders Illegal After Cuna Ruling Busted
CAPE TOWN — A full bench of the Western Cape High Court has ruled that magistrates’ courts have no power to order the deportation of a person upon convicting them of contravening the Immigration Act, overturning six years of routine practice across the country.
Judgment was handed down electronically on 2 September 2026 by Acting Judge Kantor and circulated to the legal representatives of the Intervening Parties and the Amicus Curiae before being released on SAFLII.
The six matters were referred to the full bench by the Judge President in terms of sections 302 and 304(4) of the Criminal Procedure Act 51 of 1977 for consideration of whether a magistrates’ court has the power, and or is obliged, to make an order for deportation upon convicting a person of contravening section 49(1)(a) of the Immigration Act 13 of 2002.
The court found that magistrates have been handing down such orders on a routine basis following the 2020 decision in Luis Alberto Cuna v S (Sentence Appeal) (A6/2020) ZAGPPHC 790, which held that a magistrates’ court not only has the power but is obliged to make a deportation order on convicting an accused of contravening section 49(1)(a).
The papers in the six matters before the court revealed that magistrates have a template format of an order in this regard which cites Cuna.
The court noted one stand-out exception, case number 176/2026, in which a magistrate declined to order deportation, a decision it said was supported by well-articulated and cogent reasons which were of assistance to the court.
The presiding judge in the matter, Henney J, had requested the Intervening Parties to make submissions, which they did in writing and in an oral hearing.
The court said this was of considerable assistance and extended its appreciation to those parties and their legal representatives.In its analysis, the court said section 49 of the Act creates criminal offences relating to the unlawful entry into, presence in or departure from the Republic and prescribes penalties on conviction.
It empowers a criminal court to determine guilt and, if necessary, to impose sentence.
However, it contains no express provision authorising a criminal court to order deportation as part of sentence.
The court found that deportation is regulated separately under sections 32 and 34 of the Act, with section 32(1) providing that an illegal foreigner shall depart the Republic unless authorised by the Director-General to remain pending his or her application for a status.