JOHANNESBURG, Illegal foreign nationals in South Africa continue to be a headache for the Department of Home Affairs (Interior), which is heading back to court to challenge a High Court ruling that illegal foreign nationals must appear in court within 48 hours of their detention.

The development came just days after a landmark judgment by the Constitutional Court here that illegal foreign nationals be held at designated Home Affairs detention centres and not at just any police station.

A 40-year-old Congolese who was held at the Sunnyside police station for days on suspicion of an immigration violation said: "When I was there, we were not allowed any visitors, we were just waiting for the people from Immigration to come.

"When they eventually came, each and every time I would try to show them my papers so I can be released, but they were always telling me to wait, and promised to come to me, until 11 days passed."

Guyguy Sapwe, a Congolese national who deals with many such cases and assists foreign detainees, said: "People are being detained in places that they are not meant to be detained. People are being detained there and they are mixed with criminals."

However, the recent Constitutional Court ruling is set to change this after 15 foreign nationals took the Department of Home Affairs to court after they were held at police stations and prisons in Eastern Cape Province for up to a month.

The ruling has far-reaching implications said Wayne Ncube from Lawyers for Human Rights who explained: "The expectation is that only those police stations that the Minister (of Home Affairs) feels would adhere to the minimum requirement of the Immigration Act are the ones that a particular individual can be detained at.

"If a person is detained in a place that is not designated by the Minister, then the detention is unlawful.

The Constitutional Court judgment will also open the doors for those currently held illegally to challenge their detention in court and even possibly claim for damages.

The Department of Home Affairs could not be reached for comment.