President of the Republic of South africa v Eisenberg and Associates and Another (1992/2004, 2406/2004) [2004] ZAWCHC 16; 2005 (1) SA 247 (C) (16 April 2004)

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[2004] ZAWCHC 16
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President of the Republic of South africa v Eisenberg and Associates and Another (1992/2004, 2406/2004) [2004] ZAWCHC 16; 2005 (1) SA 247 (C) (16 April 2004)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE
PROVINCIAL DIVISION]
Case Numbers:
1992/2004
2406/2004
In the matters
between:
THE
PRESIDENT OF THE REPUBLIC
OF SOUTH
AFRICA Applicant
and
EISENBERG
AND ASSOCIATES Respondent
THE MINISTER OF HOME
AFFAIRS Intervening Party
and
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH AFRICA Applicant
and
EISENBERG
AND ASSOCIATES Respondent
THE MINISTER OF HOME
AFFAIRS Intervening Party
________________________________________________________________
REASONS FOR JUDGMENT
DELIVERED ON 16 APRIL 2004
HJ
ERASMUS, J
Introduction
This is an extraordinary
case in which relief of an extraordinary nature is sought: the
President of the Republic of South Africa
(“the President”)
applies for the rescission of an order this Court made on 8
th
March 2004 by agreement
between the Minister of Home Affairs (“the Minister”) and
Eisenberg and Associates (“Eisenberg”) under
case number
1589/2004 in an urgent application in which the Minister was the
respondent. The President also seeks an order setting
aside and
declaring invalid certain regulations published by the Minister on
8
th
March 2004 which were due to come into effect on 7
th
April 2004.
At
the outset it should be stressed that the case is not concerned with
the merits of the content of the regulations.
The matter was argued
before me on Monday 5
th
and Tuesday 6
th
April 2004. At the hearing, Mr M Donen SC and Ms K Pillay appeared
for the President, Mr D Unterhalter SC and Ms AM Annandale for
the
Minister, and Mr A Katz for Eisenberg.
By reason of the fact
that the regulations were due to come into force and effect on 7
th
April 2004, the proceedings were conducted under severe constraints
of time. The Court was obliged to come to a decision on the orders
sought by the President not later than midnight on 6
th
April 2004. I am indebted to the legal representatives of the parties
for the manner in which they dealt at short notice with a wide
range
of issues, including issues of constitutional importance.
In the late afternoon of
6
th
April 2004 I made the following orders:
In case number
1992/2004:
the application for
leave to intervene by the Minister of Home Affairs is granted;
the rule made on 10
March 2004 is discharged; and
no order as to costs is
made.
In case number
2406/2004:
the applicant’s
failure to comply with the Rules of Court in regard to service and
time periods is condoned;
the application for
leave to intervene by the Minister of Home Affairs is granted;
the order made by
consent on 8 March 2004 in case number 1589/2004 is rescinded
the
regulations made by the Minister of Home Affairs pursuant to the
provisions of section 7(1) of the Immigration Act, 2002 (Act
13 of
2002) and published on 8 March 2004 in
Government
Gazette
No. 26126 (
GN
352 of 2004) are set aside, and
no order as to costs is
made.
I indicated at the time
that I shall in due course give reasons for the orders made. These
are my reasons.
The
background
The
Immigration Act and
Regulations
Section
7(1) of the Immigration Act 13 of 2002 (“the Act”) provides that
–
The
Minister shall have the power to make regulations called for, or
conducive to, the implementation of this Act, and in making
regulations
in terms of this Act, the Minister shall –
The section then proceeds
to prescribe a detailed procedure the Minister has to follow when
making regulations. In
Minister
of Home Affairs v Eisenberg & Associates
[2003] ZACC 10
;
2003 (5) SA 281
(CC) at 285D—E (par [11]), Chaskalson CJ points out
that the section must be read with the definitions in section 1, and
proceeds
(at 285G (par [12]):
Read in the
light of these definitions the regulations referred to in s 7 are
regulations made after consultation with the Board.
The power vested
in the Minister by this section is a power to make such regulations.
In doing so the Minister is obliged to follow
the consultative
process set out in s 7 and to publish the definitions [
sic
:
regulations?] in the manner required by the definition of ‘publish’”.
Following
upon the coming into force of the Act on 14
th
March 2003, the Minister set in motion the consultative process
provided for in section 7 of the Act. The process was completed by
January 2004 and a final set of regulations was formulated. The
Minister indicated at the time that the regulations were finalised
and were ready for publication.
At
a media briefing on 11
th
February 2004, the Minister stated that the Cabinet had decided to
review the regulations. The Minister says in an affidavit filed
in
these proceedings that the President requested him during January
2004 to bring the regulations before the Cabinet.
The
Cabinet, once the regulations were brought before it, appointed an
ad
hoc
committee of Ministers,
headed by the Minister himself, to deal with the review of the draft
regulations. It was common cause at
the hearing before me that some
of the members of the Cabinet had queries and reservations about
aspects of the regulations which
impact upon their Departments. The
Department of Foreign Affairs, for example, raised objections to the
regulation of visa exemption
in the draft regulations on the ground
that visa exemption is a matter of foreign policy which cannot
unilaterally be dealt with
in regulations made by the Minister.
Nonetheless, the Minister says that he responded to all the Ministers
concerned and that "the
bulk of the final Regulations were
accepted by cabinet".
There
were also differences of opinion about the constitutionality of
certain of the regulations. The Minister of Justice instructed
the
Chief State Law Adviser to assemble a team to scrutinise the draft
regulations. The team was to report to the Minister as head
of the
ad
hoc
committee dealing with
the proposed regulations so as to enable the Minister to convene the
committee to study the report. The team
appointed by the Chief State
Law Adviser in due course submitted a report in which they expressed
the opinion,
inter alia
,
that the “drafting style and format used is laborious, inelegant
and not reader friendly at all”, and that a number of regulations
are (or may be found by a competent Court to be)
ultra
vires
the Act. The Law
Advisers of the Department of Home Affairs ("the Department")
on 28 February 2004 responded in a lengthy
memorandum in which they
endeavoured to refute the findings and conclusions of the team
appointed by the Chief State Law Adviser.
In this regard, the
Minister says in one of his affidavits filed in these proceedings --
I have urged my
Department to continue discussions with the State Law Advisors to
canvass the full measure of the outstanding legal
issues so as to
reach mutual and constructive understanding.
This
was the position when Eisenberg on 2
nd
March 2004 launched its urgent application which in due course
precipitated these proceedings.
The
Eisenberg application
In
the application brought by Eisenberg (under case number 1589/2004)
the Minister is cited as respondent. In the Notice of Motion
an order
was sought in the following terms:
Declaring that only
regulations made by the Respondent in terms of
section 7
of the
Immigration Act 13 of 2002
are valid and lawful.
Interdicting Respondent
from making regulations in terms of
section 7
of the
Immigration Act
13 of 2002
other than those he was about to make on or about January
16, 2004.
On 4
th
March 2004 the Minister gave notice of his intention to abide the
decision of the Court in the matter.
In
an answering affidavit, the Minister states that he does not dispute
the correctness of any of the allegations contained in the
founding
affidavit deposed to by Mr Gary Eisenberg. He further states that for
the assistance of the Court, he attaches the immigration
regulations
to which the applicant refers in the founding affidavit. As far as
the relief which is sought is concerned, the Minister
states that he
abides the decision of the Court, and in so far as the Court may
require any representations or submissions from his
Ministry, he will
cause his legal representatives to be present at the hearing of the
matter.
Mr Gary Eisenberg, in an
affidavit deposed to on behalf of Eisenberg in these proceedings,
explains that that the urgent application
for a declaratory order was
brought because Eisenberg had reason to believe that the
ad
hoc
committee of Ministers
were to make changes to the draft regulations that the Cabinet had
already in principle decided must be made.
Eisenberg was of the
opinion that the Cabinet committee had no power to make immigration
regulations, and that the procedure adopted
by the Cabinet was in
violation of and a subversion of the consultative process provided
for in section 7 of the Act. The purpose
of the declaratory order and
interdict was to ensure that only regulations made in accordance with
the prescribed consultative process
would be promulgated.
When the matter was
called before me in motion court on 8
th
March 2004, Mr A Katz and Ms AM Annandale appeared, respectively
representing the Eisenberg and the Minister. At that stage, the
Court
file contained only the brief answering affidavit of the Minister
with a set of regulations annexed thereto. A copy of the
founding
affidavit was handed up from the Bar. Counsel then informed me that
the parties had reached agreement on an order which
differs from the
relief sought in the Notice of Motion. I was requested to make an
order by consent between the parties in the following
terms:
The Respondent shall
forthwith publish the Immigration Regulations annexed to his
affidavit marked "MG 1".
The Respondent is
directed to gather all proposals he has thus far received since the
completion of the process set out in
section 7(1)
of the
Immigration
Act, Act
13 of 2002 from his cabinet colleagues and within 30 days
of this Order shall publish a general description of such proposals
as
possible amendments to the Immigration Regulations made pursuant
to paragraph 1 of this Order so as to comply with
section 7(1)(a)
of
the
Immigration Act giving
the public ample time to provide its
comments on such proposed amendments.
The Ministry of Home
Affairs caused the regulations to be published on the same day (8
th
March 2004) in
Government
Gazette
26126 (
GN
352 of 2004). The regulations as published in the
Government
Gazette
run to 251 pages.
Regulation 51
provides
that the regulations shall come into force and effect thirty days
from the date of their publication in the
Government
Gazette
; that is, on 7
th
April 2004.
The
suspending application
On 10
th
March 2004 I was approached at about 21h00 as a matter of urgency by
the legal representatives of the President. The founding affidavit
in
the urgent application was deposed to by the Honourable Penuell Mpapa
Maduna, the Minister of Justice of the Republic of South
Africa. In
his affidavit, the Minister of Justice pointed out that the status of
the immigration regulations at Cabinet level is
still unresolved, and
that the "necessary input from various ministries which would be
involved in the implementation of the
proposed regulations are still
outstanding". He adds that various objections to the
constitutionality of the proposed regulations
still needed to be
resolved. The Minister is also of the view that it was
constitutionally incompetent for this Court to have made
the order it
made on 8
th
March 2004, and that accordingly it was not competent for the
Minister or his legal representatives to consent to such an order.
In
view of the fact that the issues raised were
prima
facie
of great public
importance and seemed to involve unresolved differences at cabinet
level about various aspects of the immigration
regulations, I made an
order (under case number 1992/2004) in the following terms:
The respondent
(Eisenberg and Associates) is called upon to show cause on 1 April
2004 why the order granted under case number 1589/04
(in the matter
between Eisenberg and Associates and the Minister of Home Affairs)
should not be suspended pending an application
by the above
applicant to set aside the said order.
The order under case
number 1589/04 is suspended pending the abovementioned return day.
The
return day was by consent extended to 5 April 2004.
The
rescission application
On
24 March 2004, the President brought an application (under case
number 2406/2004), citing Eisenberg and Associates as respondents,
for an order --
condoning the
applicant's failure to comply with the rules of this Honourable
Court in regard to service and time periods by virtue
of the urgency
of the matter;
rescinding the order
made by consent on 8 March 2004 under case number 1589/04, a copy of
which is annexed hereto marked A;
declaring the
regulations made by the Minister of Home Affairs on 8 March 2004,
pursuant to the provisions of section 7(1) of the
Immigration Act,
2002 (Act No 13 of 2002) and published in the Government Gazette No
26126, to be invalid and of no force and effect;
setting aside the
aforementioned regulations.
Eisenberg
does not oppose the relief sought by the President nor does it oppose
the Minister’s application for leave to intervene.
In his answering
affidavit, Mr Gary Eisenberg makes it clear that the affidavit is
solely made in order to assist the Court in the
resolution of the
matter, and that counsel will appear at the hearing for the sole
purpose of assisting the Court on legal issues
arising. I can only
add that the affidavit of Mr Eisenberg proved most helpful, and that
the contribution of Mr Katz at the hearing
was equally helpful.
The
Minister applied for leave to intervene in both the suspending
application and the rescission application. His initial attitude
was:
I
wish at the outset to make it plain that as a Minister of the
applicant’s cabinet, I am neither authorized nor do I wish to
oppose
the application.
The applicant’s heads
of argument were made available to me and to counsel for the Minister
on the evening of Sunday, 4
th
April 2004. On the morning of 5
th
April, Mr Unterhalter requested time to determine the attitude of the
Minister in regard to certain submissions in the heads which
were not
anticipated or foreshadowed in the applicant’s founding affidavit.
In these submissions, the Minister’s integrity was
called into
question. Having obtained instructions from his client, Mr
Unterhalter informed the Court that the Minister would now
apply to
intervene to oppose both applications. A further affidavit, deposed
to by the Minister, and dealing with the submissions
raised in the
heads of argument and the application for leave to intervene as an
opposing party, was handed in on the morning of
6
th
April 2004.
What I had before me at
the hearing on 5
th
and
6
th
April 2004 were therefore:
the return day of the
order granted as a matter of urgency on 10
th
March 2004;
the applications of the
Minister for leave to intervene in both applications brought by the
President; and
the President’s
application for the rescission of the order made on 8
th
March 2004, and for declaring the regulations invalid and for
setting them aside.
It
was agreed not to deal separately at the hearing with the
applications for leave to intervene, and that I would deal with all
the
issues raised on the papers and in argument in my rulings at the
end of the proceedings.
The issues
The
issues argued before me were the following:
The Minister’s
applications for leave to intervene.
The jurisdiction of the
Court to entertain the application of the President.
The requirements of
co-operative government set out in the Constitution.
Individual or collective
responsibility of Ministers in the Cabinet.
The order of Court
obtained by consent on 8
th
March 2004.
The
applications for leave to intervene
Whatever was said on
paper prior to the hearing about the applications for leave to
intervene, at the hearing the Minister was treated
by all involved,
including counsel for the President, as a respondent who opposed the
relief the President was seeking. This was
undoubtedly in part due to
the fact that, in view of the constraints of time, it was not
possible first to resolve the issue of intervention
and then to
proceed with the hearing of the other issues. In argument, counsel
referred to all the affidavits filed by the Minister,
including that
filed on the morning of 6
th
April 2004, as if they were documents filed by a party to the
proceedings. In the circumstances, the Minister’s applications for
leave to intervene were granted.
I
may add that in my view there is substance in the submissions of Mr
Unterhalter that the Minister should have been joined as a necessary
party. The President seeks in these proceedings to set aside the
regulations made by the Minister in terms of a statutory instrument
empowering him to make regulations. The President seeks a
constitutional review of the exercise of the Minister's powers, and
as
the functionary whose exercise of power is called into question,
the Minister should in my view have been joined.
Individual or
collective responsibility of Ministers in the Cabinet.
The President’s
application turns on the question whether or not the approval of
Cabinet was necessary before the Minister made
the immigration
regulations on 8
th
March 2004. If the approval of Cabinet was necessary, the regulations
were made unlawfully and the President is entitled to the relief
he
seeks. If Cabinet approval was not necessary, the regulations were
lawfully made in terms of section 7 of the Act and the President
is
not entitled to the relief he seeks.
Section
85 of the Constitution deals with the executive authority of the
Republic and provides as follows:
The executive authority
of the Republic is vested in the President.
The President exercises
the executive authority, together with the other members of the
Cabinet, by –
implementing national
legislation except where the Constitution or an Act of Parliament
provides otherwise;
developing and
implementing national policy;
co-ordinating the
functions of state departments and administrations;
preparing and initiating
legislation; and
performing any other
executive function provided for in the Constitution or in national
legislation.
The
President appoints the members of the Cabinet, assigns their powers
and may dismiss them (section 91(1) and (2) of the Constitution).
In
terms of section 92(2) of the Constitution, the members of the
Cabinet are accountable collectively and individually to Parliament
for the exercise of their powers and the performance of their
functions.
The position is, in my
view, correctly summarised by Currie and De Waal in
The
New Constitutional and Administrative Law
,
Volume I (2001) in the following terms (at 256):
In
principle, the President and the other members of the Cabinet are
individually responsible to Parliament for powers exercised
individually,
and collectively responsible for powers exercised
collectively. As was stated, this means that the cabinet is
collectively responsible
for major policy decisions. The President is
individually responsible for the exercise of head of state powers and
powers conferred
to the President in terms of ordinary legislation.
Ministers are individually responsible for the exercise of powers
conferred on
them by ordinary legislation, which is not of a nature
where the approval of Cabinet is necessary.
Mr
Unterhalter submitted that where Parliament confers upon a Minister,
in plain and unmistakable terms, the power to make regulations,
the
Minister is vested with subordinate law-making powers which derive
from an enactment of Parliament. The origination of the Minister’s
power in the statute is not altered by the fact that the Minister is
a member of the Cabinet appointed by the President. The repository
of
the power remains the Minister, and the origin of the power remains
the enactment of Parliament. The provisions of section 85
of the
Constitution neither divest a Minister of the power given to him by
Parliament to make regulations, nor do they render the
exercise of
the Minister’s power subject to Cabinet supervision.
The
validity of these submissions as statements of general principle
cannot be faulted. There are, however, two qualifications of
the
general principle.
First,
in the exercise of power conferred on him by Parliament, a Minister
must comply with the Constitution, which is the supreme
law, and the
doctrine of legality which is part of that law (
Pharmaceutical
Manufacturers Association of SA and Another: In re ex parte President
of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at par
[18]
).
The
second qualification is that the exercise of the power must accord
with the grant of the power; or, put differently, there must
be
compliance with the jurisdictional facts upon which the valid
exercise of the power pursuant to the enabling enactment are
dependent.
It is accordingly necessary to examine the precise ambit
of the power to make regulations which Parliament conferred on the
Minister.
Section
7(1) of the Act provides --
The
Minister shall have the power to make regulations called for, or
conducive to, the implementation of this Act ….
In
exercising the power vested in him to make regulations, the Minister
is obliged, as has been pointed out above, to follow the consultative
process set out in section 7 of the Act. In exercising the power
vested in him, the Minister must also have regard to the aims of
the
Act and the objectives of immigration control as set out in therein.
Regulations which are “called for, or conducive to, the
implementation” of the Act, are regulations which give effect to
the aims of the Act and the objectives of immigration control
set out
in the Act. In other words, the regulations that are made must be
rationally related to the purpose for which the power to
make the
regulations was given (
Pharmaceutical Manufacturers Association of
SA and Another: In re ex parte President of the Republic of South
Africa and Others, supra,
at [par 85]).
In the
Preamble it is stated that the Act –
aims
at setting in place a new system of immigration control which ensures
that –
……..
(c)
interdepartmental coordination constantly enriches the functions of
immigration control and a constant flow of public inputs
is present
in further stages of policy formulation, including regulation making.
Section
2 of the Act, which deals with the objectives and functions of
immigration control, provides as follows in subsection (1)
(d) and
(i):
In the administration of
this Act, the Department shall pursue the following objectives:
…………
.
(d)
creating a climate of cooperation with other organs of State to
encourage them to take responsibility in implementing this Act
within
the ambit of their respective powers and functions;
…………
.
(i) promoting
integration of functions, harmonisation and cooperative relations
among all organs of State with responsibilities in
respect of
controlling the borders and activities at ports of entry.
Subsection (2) of section
2 of the Act provides that, in order to achieve the objectives set
out in subsection (1) of section 2, the
Minister’s Department
shall,
inter alia
,
liaise with certain other Departments (the South African Police
Service and the South African Revenue Service) and shall –
in cooperation with the
Department of Foreign Affairs –
promote programmes in
foreign countries with the aim of deterring people from becoming
illegal foreigners;
table the
need for cooperation in preventing migration towards the Republic on
the agenda of relations with foreign states, negotiating
appropriate
measures and agreements with such foreign states.
The
themes of coordination and cooperation pervade the aims and objects
of the Act. The Act aims at setting in place a system of immigration
control on the basis of "interdepartmental coordination".
Among the objectives the Department must pursue in the administration
of the Act, are the creation of “a climate of cooperation with
other organs of State", and the “promotion of integration
of
functions, harmonisation and cooperative relations among all organs
of State". Finally, in order to achieve the stated objectives,
the Department must liaise with other Departments, and must cooperate
with the Department of Foreign Affairs in negotiating appropriate
measures and agreements with foreign states to deal with problems of
migration towards the Republic.
If
one of the jurisdictional facts for the valid exercise of the power
to make regulations pursuant to the provisions of section 7
is that
the regulations should be called for or conducive to the
implementation of the Act, the regulations must give effect to the
stated aim and objects of setting in place a system of immigration
control on the basis of interdepartmental coordination, the pursuit
of creating a climate of cooperation with other organs of State, and
the promotion of integration of functions, harmonisation and
cooperative relations among all organs of State.
Coordination
and cooperation between organs of state is a constitutional
imperative. Chapter 3 of the Constitution reinforces this
cooperation, and section 41(1)(h)(iv) explicitly enjoins organs of
state to coordinate “their actions and legislation with one
another”.
In terms of section
85(2)
(c)
of the Constitution, interdepartmental coordination is one of the
executive functions to be exercised by the President together with
the other members of the Cabinet.
Matters of
interdepartmental coordination therefore are matters of collective
responsibility.
In terms of section
85(2)
(b)
of the Constitution, the development and implementation of national
policy is a matter of collective executive responsibility. Section
7
of the Act does not empower the Minister to make regulations that, in
effect, develop and implement national policy. In so far
as the
Minister may elect to make national immigration policy in exercising
his powers under section 7 of the Act, he is bound to
do so under the
hegemony of section 85(2)
(b)
of the Constitution. The unilateral implementation of policy to
regulate portfolios other than his own by the Minister in regulations
framed in terms of his powers under section 7 would also be in
conflict with the central aims of coordination and cooperation which
underlie the Act.
The dispute in the
Cabinet about the regulations which deal with visa exemption, the
contention of the Department of Foreign Affairs
being that visa
exemption is a matter of foreign policy, cannot therefore be resolved
unilaterally in regulations made by the Minister.
It is a matter of
collective executive responsibility under section 85(2)
(b)
of the Constitution, and the impasse must be resolved in cooperation
with the Department of Foreign Affairs.
The
power to make regulations is conferred on the Minister within the
context of the Act which requires coordination of function and
policy
of different organs of state. The exercise of that power by the
Minister is, therefore, not a matter of individual but of
collective
responsibility. In the exercise of that collective responsibility,
the provisions of section 7 of the Act need to be complied
with.
The jurisdiction of
the Court to entertain the President’s application
Mr Unterhalter submitted
that this Court lacks jurisdiction to determine the dispute before
it. He said that the dispute before the
Court is one between organs
of State and that the Court lacks jurisdiction to determine disputes
between organs of State by reason
of the exclusive jurisdiction
enjoyed by the Constitutional Court in terms of section 167(4) of the
Constitution.
Section
239 of the Constitution defines an organ of State as follows:
any department of State
or administration in the national, provincial or local sphere of
government; or
any other functionary or
institution --
exercising a power or
performing a function in terms of the Constitution or a provincial
constitution; or
exercising a public
power or performing a public function in terms of any legislation,
but does not include a court or a judicial
officer.
In
President
of the Republic of South Africa and Another v Hugo
1997 (4) SA 1
(CC) at 10B (par [12] Goldstone J referred to the
President as "an executive organ of State". In
National
Gambling Board v Premier, Kwazulu-Natal, and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC) at 724E (par [19]) it was held that a Minister,
being a functionary that exercises a power or performs a function in
terms of
the Constitution, is an organ of State.
The
questions which arise in this matter are whether a dispute between
the President and a Minister who is a member of his Cabinet
is a
dispute between organs of State; or whether it is an internal dispute
within an organ of State, namely, the Cabinet; and whether
the
Cabinet is an organ of State?
In
Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) at 937G--H (par [25]) it is stated:
The national sphere of
government comprises at least Parliament, the President and the
Cabinet … These State organs comprise the
national sphere of
government and are within it. They are not s 239 organs of State
because they are neither departments nor administrations
within the
national sphere of government.
In
National
Gambling Board v Premier, Kwazulu-Natal, and Others, supra,
at 724G--725A (par [21]) the above statement is clarified as follows:
Whether
Parliament, the President and the Cabinet are organs of State within
the definition in s 239 was not an issue in the
Langeberg
case. As it stands, the quoted words may be understood too widely. In
context they mean that Parliament, the President and the Cabinet
are
not organs of State within the meaning of para
(a)
of the definition.
Parliament, the President
and the Cabinet are not organs of State within the meaning of para
(a)
of section 239 of the Constitution because they are not departments
or administrations within the national sphere of government
(
Independent Electoral
Commissions v Langeberg Municipality, supra,
at 937G--H ([par 25])). In terms of para
(b)
of section 239 the definition of "organ of State" includes
any other functionary or institution exercising a power or performing
a function in terms of the Constitution.
In terms of the
Constitution, the executive authority of the Republic vests in the
President (section 85(1)). The Constitution requires
the President to
exercise the executive authority together with the Cabinet (section
85(2)). The Cabinet consists of the President,
the Deputy President
and the Ministers. The members of the Cabinet are accountable
individually and collectively to Parliament (section
92(2)). Under
these provisions, the Cabinet is an institution that exercises powers
and performs functions in terms of the Constitution.
The Cabinet is
therefore an organ of State in terms of para
(b)
of section 239 of the Constitution.
The conclusion that both
a Minister and the Cabinet may qualify as an organ of State in so far
as they exercise a power or perform
a function in terms of the
Constitution or in terms of legislation, finds support in Currie and
De Waal
The New
Constitutional and Administrative Law
,
Volume I (2001) at 246.
In
my view, the dispute in this matter does not involve a dispute
between organs of State as contemplated by section 167(4) of the
Constitution. The dispute concerns actions taken by a member of the
Cabinet which the President, as head of the national executive,
alleges are actions that fall within the collective responsibility of
the Cabinet.
The
requirements of co-operative government
It was further submitted
on behalf of the Minister that the President has not complied with
the principles of cooperative government
entrenched in Chapter 3
(sections 40 and 41) of the Constitution. Section 40(2) requires that
all spheres of government must observe
and adhere to the principles
of cooperative government and conduct their affairs within the
parameters of Chapter 3. In terms of
section 41(3) it is peremptory
that organs of State involved in an inter-governmental dispute must
make every reasonable effort to
settle the dispute by means of
mechanisms and procedures provided for that purpose, and must exhaust
all other remedies before they
approach a Court to resolve the
dispute. Section 41(4) provides that if a Court is not satisfied that
the requirements of internal
settlement have been met, it may refer a
dispute back to the organs of State involved.
Mr
Unterhalter submits that there has been no compliance by the
President with the obligations of cooperative government to avoid
the
proceedings now before the Court, and in the absence of such
compliance, this matter may not be ventilated before this Court.
It has been held above
that the subject matter of the dispute that underlies these
proceedings falls within the collective responsibility
of the
Ministers. The dispute is not an inter-governmental one between
organs of State which would fall within the parameters of
Chapter 3
of the Constitution -- it is a "domestic" dispute which
involves interaction within the executive, the Cabinet.
The Minister
took the resolution of the dispute out of Cabinet by using the
opportunity afforded by the Eisenberg application to
"resolve"
it by invoking the aid of the Court. In the circumstances, I am of
the opinion that there was no obligation on
the President to comply
with the provisions regarding cooperative government in Chapter 3 of
the Constitution.
The order of Court
obtained by consent on 8
th
March 2004
Mr Donen submitted that
the order obtained by consent on 8
th
March 2004 constituted an abuse of the process of court, is
ultra
vires
the Act and is
unconstitutional.
It is necessary at this
juncture to deal in more detail with the events which preceded and
followed upon the order granted on 8
th
March 2004. In doing so, I shall not unnecessarily repeat what is
said above under the heads
The
Immigration Act and
Regulations
and
The Eisenberg
application
.
At the beginning of March
2004 the differences of opinion in the Cabinet regarding the draft
immigration regulations were unresolved.
On 3
rd
March 2004 the Minister in a letter to the Minister of Justice said
that he looks forward to the matter of the regulations "being
taken forward in policy discussions once there is greater clarity on
the relevant legal issues".
On 2
nd
March 2004 the Eisenberg application was launched. It will be
recalled that in its Notice of Motion, Eisenberg sought (i) a
declaratory
order to the effect that only regulations made in terms
of section 7 of the Act are valid and lawful, and (ii) a prohibitory
interdict
restraining the Minister from making regulations in terms
of section 7 of the Act other than those he was about to make on or
about
16
th
January, 2004.
On 3
rd
March 2004 the Minister informed the President of the Eisenberg
application and said that he would in due course inform the Cabinet.
The Minister also caused a copy of the papers to be delivered to the
Chief State Law Adviser.
On 4
th
March 2004 the Minister gave notice of his intention to abide the
decision of the Court. In an answering affidavit, the Minister
states
that he does not dispute the correctness of any of the allegations
contained in the founding affidavit and reiterates that
he abides the
decision of the Court.
On 5
th
March 2004 a copy of the draft regulations was delivered to the
Government Printers. The Minister in his affidavit of 6
th
April 2004 says that this was done --
…
.. for no other
purpose than being there should the need have arisen for them to
publish as a consequence of the negotiations which
were undergoing
between my lawyers and that of Eisenberg & Associates or as a
result of the court hearing to be held on March
8.
Upon the initiative of
the legal representatives of the Minister, a form of order was agreed
upon which differed materially from the
relief sought in the Notice
of Motion. Mr Gary Eisenberg says that the Minister’s legal
representatives approached Eisenberg’s
legal representatives on
Sunday, 7
th
March 2004 and proposed that a different order to that sought in the
Notice of Motion should be granted. Agreement was reached on
the
morning of 8
th
March 2004 on the form of order to be sought.
The
Minister did not inform the President, the Cabinet or the Chief State
Law Adviser of his intention to consent to an order which
differed
materially from the relief sought by Eisenberg and which would
involve the immediate publication of the draft immigration
regulations.
It will be convenient at
this stage to repeat the terms of the order to which the Minister
consented on 8
th
March 2004:
1. The Respondent shall
forthwith publish the Immigration Regulations annexed to his
affidavit marked "MG 1".
2. The
Respondent is directed to gather all proposals he has thus far
received since the completion of the process set out in
section 7(1)
of the
Immigration Act, Act
13 of 2002 from his cabinet colleagues
and within 30 days of this Order shall publish a general description
of such proposals as
possible amendments to the Immigration
Regulations made pursuant to paragraph 1 of this Order so as to
comply with
section 7(1)(a)
of the
Immigration Act giving
the public
ample time to provide its comments on such proposed amendments.
In
the Eisenberg application an order for the immediate publication of
regulations was not sought. The Minister explains his consent
to an
order which obliged him “forthwith” to publish the draft
regulations, in the following terms –
The
application launched by Mr Eisenberg forced me to focus on the
meaning and implication of section 7 of the Act and my own misgivings
on the validity of a Cabinet process aimed at altering the
regulations after the completion of the section 7 process. Therefore,
by the time I consented to the March 8 Order of this Honourable Court
and implemented it by ordering the publication of the Immigration
Regulations I was convinced that my action was required and compelled
by what the law required.
The
Minister further says that the prohibitory interdict originally
sought by Eisenberg would have placed him in a stale-mate position
and potentially stagnated the regulation-making process. The Minister
adds that the order originally sought –
would have
further precluded me from completing the deliberations before Cabinet
in regard to such regulations, thereby precluding
the process of
obtaining cabinet’s contributions to any regulations. It will be
observed that the second part of the Consent order
taken on 8
th
March, 2004 has provided for the continuation of the process serving
before Cabinet and furthermore, by virtue of the fact that such
process would continue further in terms of an order of Court and
thereby be protected from further challenges that may have been
made
to such regulations.
On
the face of it, a contradiction seems to lurk in the Minister's
explanation. On the one hand, he says that he agreed to the immediate
publication of the draft regulations because he had "misgivings
on the validity of a cabinet process aimed at altering the
regulations
after the completion of the section 7 process". On
the other hand, he says that the order sought by Eisenberg would have
precluded
him from completing the deliberations before Cabinet in
regard to the regulations, "thereby precluding the process of
obtaining
cabinet’s contributions to any regulations".
Be
that as it may, it is clear that the Minister accepts that the
Cabinet is entitled to contribute to the development of the
regulations,
provided that any amendments resulting from the
deliberations in Cabinet be subjected to the consultative process
prescribed in section
7 of the Act. There is nothing in the papers,
apart from a suggestion by the Minister, that establishes an
intention on the part
of the Cabinet to make amendments to the draft
regulations without complying with the consultative process
prescribed in section
7 of the Act.
As has been pointed out
above, the regulations were published on the same day that the order
by consent was granted (8
th
March 2004) in
Government
Gazette
26126 (
GN
352 of 2004).
On the same day (8
th
March 2004) the Minister informed the President of the Court order.
He did not make reference to the fact that the order had been
made by
consent (on terms initiated by his legal advisers) and that the terms
of the order differed materially from the order originally
sought by
Eisenberg. He further informed the President that "I have
complied with such an order."
In
regard to the second part of the Court order, the Minister informed
the President:
I shall comply with the
second paragraph of the Court Order as soon as possible and will
collate the comments thus far received during
the Cabinet process and
publish them for public comments in terms of section 7(1)(a) of the
Act.
……….
I will act expeditiously
to ensure that the process may continue as directed by the Court and
that policy formulation through regulations
carries forward without
undue delay in an open and transparent manner.
In
his first affidavit, filed in his application for leave to intervene
in the suspending application, the Minister says:
I also believe it to be
important that this Honourable Court be advised of the fact that I
immediately complied with the Order granted
by this Honourable Court
on 8 March 2004 [and] published the Regulations that very day.
In
an affidavit filed in the rescission application, the Minister
qualifies his position by saying --
When I published,
although I was doing so pursuant to the provisions of a Court Order,
I was nonetheless acting in terms of section
7 of the Act and
believed that what I was doing was valid, constitutional and lawful
exercise of that power which would bring about
valid regulations.
Mr
Donen submitted that it is apparent from the foregoing facts that the
actions of the Minister were carefully orchestrated to circumvent
the
Cabinet process that was under way, and that the Court and the
President had been deliberately misled. The Court, so it is alleged,
was misled by the fact that the presiding Judge was not informed of
the full context within which the order by consent was sought.
The
President was deliberately misled by the fact that he was not
informed of the Minister's decision not merely to abide the decision
of the Court, but to consent to an order that the regulations be
published forthwith. The Minister's immediate compliance with the
order was made possible by the fact that the text of the regulations
had been handed to the Government Printer on 5 March 2004. Mr
Donen
says that neither the Court, nor the Act, nor the Constitution can
countenance this deception and that the order should be
set aside for
this reason alone. (I should add that Mr Donen made it clear that it
was not submitted that counsel participated in
the deliberate
deception).
The facts do not warrant
the inference that the Minister's conduct was part of a
mala
fide
scheme of deliberate
deception. In my view, given the Minister's reservations about the
Cabinet process, the Minister used the opportunity
afforded by the
Eisenberg application to publish the regulations, and there are no
grounds for finding that, when he consented to
the order on 8
th
March 2004 and implemented it by publication of the regulations, he
was not
bona fide
convinced that his action was required and compelled by what the law
required.
Mr Donen further
submitted that in consenting to the order, the Minister abdicated his
powers to the Court and then acted under the
Court's direction. I
agree with Mr Unterhalter that a
mandamus
such as that contained in the first part of the order is a recognised
remedy in public law and one which the Court is empowered to
grant.
One of the established purposes which a
mandamus
serves is to compel a body to perform a statutory duty. The Minister
makes it clear that when he published the regulations pursuant
to the
provisions of the order, he was nonetheless acting in terms of his
powers under section 7 of the Act and believed that what
he was doing
was a valid, constitutional and lawful exercise of that power.
In
all the circumstances, the order falls to be set aside not because it
was obtained by deception, nor on the ground that by consenting
to
it, the Minister abdicated his powers to the Court. The order is
incompetent and must be set aside because the making of regulations
under section 7(1) of the Act is a matter of collective
responsibility of the executive and Cabinet approval is necessary for
the
making of regulations.
Rescission of the
order and setting aside of the regulations
The President applied for
rescission of the order granted on 8
th
March 2004 under the provisions of Uniform Rule of Court 42(1)
(a)
which provides as follows:
The court
may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind or vary:
(a) An order
or judgment erroneously sought or erroneously granted in the absence
of any party affected thereby.
The
order was sought and granted in the absence of the President who, as
head of the executive, was clearly affected thereby.
The
order was erroneously sought and erroneously granted because the
making of regulations under section 7 of the Act is a matter
of
collective responsibility of the executive and Cabinet approval is
necessary for the making of regulations.
Though the error is not
apparent on the record of the proceedings, the Court is not confined
to the record of the proceedings in deciding
whether a judgment was
erroneously granted (
Standard
and Another v ABSA Bank
1997 (4) SA 873
(E) at 882C--G, not following
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E); see also
Mutebwa
v Mutebwa and Another
2001
(2) SA 193
(TkHC) at 201A--H;
Smit
v Van Heerden
[2002] 4 All
SA 461
(C) at 467f—g). The words of Nepgen J in
Standard
and Another v ABSA Bank, supra,
at 882E—F are apposite to the present matter:
It seems to me that the
very reference to 'the absence of any party affected' is an
indication that what was intended was that such
party, who was not
present when the order or judgment was granted, and who was therefore
not in a position to place facts before
the Court which would have or
could have persuaded it not to grant such order or judgment, is
afforded the opportunity to approach
the Court in order to have such
order or judgment rescinded or varied on the basis of facts, of which
the Court would initially have
been unaware, which would justify this
being done. Furthermore the Rule is not restricted to cases of an
order or judgment erroneously
granted, but also an order or judgment
erroneously sought. It is difficult to conceive of circumstances
where a Court would be able
to conclude that an order or judgment was
erroneously sought if no additional facts, indicating that this was
so, were placed before
the Court.
The
Minister says that he published the regulations pursuant to the order
of Court, and adds that in doing so exercised his powers
under
section 7(1) of the Act. If the order of Court is set aside, the
regulations made pursuant thereto must also be set aside.
In so far
as the Minister in making the regulations exercised his powers under
section 7(1) of the Act, the regulations must be set
aside because,
the making of regulations in terms of the Act being a matter of
collective responsibility of the executive, Cabinet
approval was
necessary for the making of the regulations.
Costs
At the outset, the
President sought no order as to costs against the Minister. When the
Minister at the hearing of the matter gave
notice of his intention to
apply for leave to intervene as an opposing party, the President
changed his stance. I was asked to make
an order that the Minister
pay the costs
de bonis
propriis.
I
declined to make such an order because the Minister sought leave to
intervene in his capacity as Minister of Home Affairs and as
a
servant of the State in the public interest. By his intervention, the
Minister ensured that all relevant facts, seen from the different
perspectives of the parties, were placed before the Court. The
submissions of his counsel at the hearing contributed significantly
to the clarification of the issues before the Court.
The
President did not seek an order of costs as against Eisenberg.
These are the reasons for
the orders I made on 6
th
April 2004.
HJ ERASMUS J