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[2003] ZAWCHC 11
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Eisenberg and Associates v Minister of Home Affairs and Others (1301/03) [2003] ZAWCHC 11; [2003] 1 All SA 706 (C); 2003 (5) BCLR 514 (C) (27 March 2003)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
Case No: 1301/03
In the matter between:
EISENBERG AND ASSOCIATES
Applicant
and
THE MINISTER
OF HOME AFFAIRS
First Respondent
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
Second Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY
Third Respondent
THE CHAIRPERSON OF
THE NATIONAL COUNCIL
OF
PROVINCES
Fourth
Respondent
THE DEPUTY PRESIDENT
OF THE REPUBLIC
OF SOUTH AFRICA
Fifth Respondent
JUDGMENT: 27 MARCH
2003
VAN ZYL J:
INTRODUCTION
[1] This
is an application for a declaratory order invalidating the
Immigration Regulations made by the first respondent and published
in
the
Government Gazette
No 24952 (Notice 487 of 2003) on 21
February 2003. The application was brought on an urgent basis and
sought an order declaring the
said regulations to be unlawful and
inconsistent with the Constitution of the Republic of South Africa,
Act 108 of 1996, and hence
to be invalid. In addition an order was
sought requiring the first respondent, in making immigration
regulations, to comply with
the provisions of
section 7
of the
Immigration Act
13 of 2002
. Finally the applicant sought an
order that the first respondent bear all disbursements incurred by
the applicant, including those
consequent upon the employment of two
counsel.
[2] When the matter came before this
court on 11 March 2003 the applicant was represented by Mr Katz and
Mr De Waal and the first
respondent, being the Minister of Home
Affairs, by Mr Hiemstra and Ms Bawa. The second, third and fourth
respondents gave notice
that they abided the decision of this court.
The fifth respondent initially opposed the application but later
likewise gave notice
of his intention to abide the decision of this
court. Shortly before the hearing of this matter, however, the
applicant expressed
an intention to amend the relief sought by it by
inserting an additional prayer relating to the partial invalidity of
the proclamation
issued by the fifth respondent in his capacity as
Acting President. Pursuant thereto Ms R Williams appeared on behalf
of the second
and fifth respondents with a view to opposing only such
additional relief. Inasmuch as the third and fourth respondents had
filed
a joint affidavit containing their views on the interpretation
of
sections 7
and
52
of the
Immigration Act
>, Mr Heunis
appeared on their behalf with a view to assisting the court in this
regard.
[3] After
hearing full argument by counsel, this court gave an order declaring
the said regulations unconstitutional and hence invalid,
and
requiring the first respondent to comply with the provisions of
section 7
of the
Immigration Act
when
making such regulations.
The costs order sought by the applicant was likewise granted. The
court refused, however, to grant an order
relating to the partial
invalidation of the fifth respondent's proclamation aforesaid on the
basis that the issue had not been ventilated
in the papers. In any
event, such relief was not, on the facts and in the circumstances of
the case, justified. In view of the urgency
of the matter, my learned
brother presiding gave,
ex tempore
, only the briefest of
reasons for the order, subject thereto that full reasons would be
advanced in due course in a reserved judgment.
[4] During his argument Mr Hiemstra
submitted, on behalf of the first respondent, that should the court
be disposed to grant the order,
it should rule, in terms of the
provisions of section 172(1)(b)(ii) of the Constitution, that the
declaration of invalidity be suspended
for a year. This would allow
the first respondent sufficient time to correct the defective
regulations in accordance with the provisions
of
section 7
of the
Immigration Act
>. Only
sections 4
,
7
and
52
of such Act had
already come into operation, whereas the remaining provisions of such
Act would come into operation at midnight on
11 March 2003. The main
argument in this regard was that the existing regulations, issued in
terms of the
Aliens Control Act
96 of 1991, were
irreconcilable with the
Immigration Act
and
would lead to
chaos at border posts, ports, airports and elsewhere. If the
declaration of invalidity of the new regulations were
to be
suspended, however, they could be applied to the
Immigration Act
>,
as they were intended to be. During the period of suspension yet
another set of regulations, consonant with the provisions of
section
7
of the
Immigration Act
>, could be prepared and promulgated in
due course.
[5] Inasmuch as it had not been
persuaded that justice and equity, or considerations of good
government, justified such suspension
in terms of section 172(1)(b)
of the Constitution, this court refused to suspend the declaration of
invalidity. In this regard it
placed special emphasis on
section
52(2)
of the
Immigration Act
>, which provides that any
regulations adopted under the previous Act (the
Aliens Control
Act
) would "remain in force and effect until repealed or
amended".
[6] Immediately after this court had
made its order aforesaid, the first respondent approached us with an
application for leave to
appeal. One of the grounds of appeal was
that my learned brother presiding had created the impression, in
furnishing his brief
ex tempore
reasons for such order, that
the provisions of section 172(1) of the Constitution precluded the
court from suspending the order relating
to the invalidity of the
regulations. If such an impression was indeed created it was
certainly unintentional, inasmuch as careful
consideration was given
to the request for suspension before the order was issued and the
suspension was refused. Counsel for the
first respondent were given
the assurance that the apparent
lapsus linguae
would be
remedied in the reserved judgment, when full reasons would be
furnished.
[7] During the late afternoon, when my
learned brother presiding was no longer available, I was approached
in chambers by counsel
for the first respondent with an urgent
application for leave to appeal. In its notice of application the
first respondent sought
a certificate from this court, in terms of
rule 18 of the Constitutional Court rules, to appeal directly to the
Constitutional Court.
Simultaneously leave was sought, in terms of
rule 49(11) of the rules of this court, to appeal to the Supreme
Court of Appeal. Leave
in the latter case was to be suspended pending
the decision of the Constitutional Court whether or not to entertain
the appeal. The
applicant in the present matter opposed the
application. Mr Katz requested me to rule, in terms of the provisions
of rule 49(11),
that the automatic suspension of this court's order,
which would take effect on the noting of the appeal unless this court
should
"otherwise direct", should itself be suspended. In
the absence of my learned brother presiding, I had no alternative but
to hear counsel out and to consider the application being brought
before me.
[8] In considering the application for
leave to appeal I made it quite clear to counsel for the first
respondent that I was embarrassed
by the application inasmuch as this
court had not yet furnished full reasons for its order. Only once
this had been done could an
application for leave to appeal be
properly entertained. I suggested to counsel for the first respondent
that their client should
consider suspending the operation of the
remainder of the
Immigration Act
for
a period of some six
months. This would enable the Department of Home Affairs to get its
house in order and apply its mind to promulgating
new regulations in
terms of the provisions of
section 7
of such Act. It would also have
the effect that the
Aliens Control Act
, presently in force,
would remain in force and would continue to function with the old
regulations on exactly the same basis, however
unsatisfactorily, as
it had hitherto done. In this way application of the new regulations
to the old Act would be avoided.
[9] After consultations with the first
and fifth respondents, as I was given to understand, Mr Hiemstra
informed me that he was unable
to obtain instructions to this effect.
He was, indeed, instructed to continue with the application for leave
to appeal and to oppose
vigorously the applicant's request to suspend
the automatic suspension of our order in terms of rule 49(11). His
client in fact insisted
that he be allowed to present evidence
relating to the chaos that he envisaged would ensue should I be
disposed to suspend the automatic
suspension of this court's order in
terms of rule 49(11). I refused to allow any further evidence than
that already on file and was
constrained, on 11 March 2003 at
approximately 22h00, to make an order suspending the automatic
suspension of the order made by this
court earlier that day. I
likewise ordered that only
sections 4
,
7
and
52
of the
Immigration
Act
would
remain in force until 18h00 on 17 March 2003. This had
the effect of preventing the remaining provisions of the Act from
coming into
operation at midnight, some two hours later and,
consequently, of preventing the chaotic situation envisaged by the
first respondent
from developing. Hence the old
Aliens Control Act
and its regulations would remain in force at least until the evening
of 17 March 2003.
[10] On Monday 17 March 2003 the first
respondent requested that the suspension order granted on Tuesday
night 11 March 2003 be extended
for a period of twenty-one days,
until 7 April 2003. The extension was granted on the basis that it
would enable the court to furnish
a fully reasoned judgment and would
facilitate the formulation of grounds of appeal, should the first
respondent be disposed to continue
with his application for leave to
appeal.
THE
ISSUES
[11] A
number of issues have been raised in the papers, chief among which
are whether or not the applicant had
locus standi
to bring
this application and whether or not the regulations were required to
comply with the provisions of
section 7
of the
Immigration Act
>.
In regard to the latter issue the first respondent submitted that the
regulations were issued in terms of section 52 of the Act
and were
intended to be interim or transitional regulations that would remain
in force only until the Immigration Advisory Board
(the "Board")
was duly constituted and operational. Section 7 of the Act was hence
not applicable thereto.
[12] A further issue related to whether
or not the fifth respondent, the Deputy President of South Africa,
had duly acted in his capacity
as Acting President when issuing the
relevant proclamation. The applicant has since indicated that this is
no longer in issue. It
is hence not necessary to deal with it.
THE
LOCUS STANDI OF THE APPLICANT
[13] The
applicant is a Cape Town based law firm devoted exclusively to the
practice of immigration law. The applicant's sole proprietor,
Mr Gary
Eisenberg, is the South African representative to the International
Bar Association's Immigration and Nationality Law Committee
and has
served on the International Faculty of the American Immigration
Lawyers' Association. The applicant has been involved in
a number of
immigration matters, including the unreported case of
Eisenberg
and Associates v The Minister of Home Affairs and The President of
the Republic of South Africa
(case number 251/02) heard on 17
February 2003.
[14] In that matter this court,
constituted by our learned brethren Blignault and Davis JJ, granted
an application declaring the immigration
regulations made by the
first respondent on 25 November 2002 to be unlawful, unconstitutional
and hence invalid. The learned judges
gave consideration to the fact
that the applicant was actively involved in immigration law matters
both nationally and internationally
and maintained an ongoing
interest in the development of South African immigration law. On this
basis the applicant purported to
be acting in its own and in the
public interest. As in the present matter, the first respondent
averred that the applicant did not
have the requisite
locus standi
to bring the application. Although the court did not, in its
judgment, deal specifically with the arguments relating to
locus
standi
, it clearly accepted that the applicant had the necessary
legal standing to approach the court, as appears from the following
dictum
at page 7 of the typewritten judgment:
Applicant
was thus faced with the fact that the first respondent publicly
purported to exercise his powers under the
Immigration Act by
making
these Regulations. In these circumstances applicant was, in my view,
entitled to come to Court to ask for a declaratory order
in regard to
the validity of the regulations.
The court
concluded that the applicant was entitled to the relief sought by it.
[15] In his founding affidavit Mr
Eisenberg averred that the applicant has an interest in the lawful
and constitutional administration
of all laws, and in particular the
immigration laws of South Africa. For this reason alone it had
standing in the application. In
addition the applicant and members of
the public have a legal right, in terms of
section 7(1)(a)
of the
Immigration Act
>,
to comment on the subject matter of
the intended immigration regulations. They likewise have the right,
in terms of section 7(1)(b)
of the Act, to comment on the draft
regulations prior to their publication in final form in terms of
section 7(1)(c) of the Act.
The applicant fully intended to exercise
this right, as it had done when the previous regulations had appeared
in draft form. It
was hence directly affected by the first
respondent's failure to comply with the provisions of section 7 of
the Act inasmuch as this
failure deprived the applicant of its right
to comment as aforesaid.
[16] In support of its
locus standi
argument, the applicant relied not only on its own interest in
the matter, as provided in section 38(a) of the Constitution, but
also
on section 38(d) thereof. This provides that anyone acting in
the public interest may approach this court for relief when a right
specified in the Bill of Rights has been infringed. Inasmuch as this
might not be consonant with the prevailing common law, the relevant
common law principles should be developed in terms of section 39(2)
of the Constitution in order to bring it in line with the spirit,
purport and objects of the Bill of Rights.
[17] In his argument on behalf of the
applicant, Mr Katz emphasised that the right infringed by the first
respondent had been the
applicant's right to comment on the
regulations before their promulgation, as provided in
section 7
of
the
Immigration Act.
Inasmuch
as the general public's right to
comment had likewise been infringed, the applicant was acting in both
its own and the public's interest
to have the regulations
invalidated. He relied in this regard on the following
dictum
of OâRegan J in
Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others
1996 (1) SA 984
(CC) at 1104 G-H
(para 234):
Factors
relevant to determining whether a person is genuinely acting in the
public interest will include considerations such as: whether
there is
another reasonable and effective manner in which the challenge can be
brought; the nature of the relief sought, and the
extent to which it
is of general and prospective application; and the range of persons
or groups who may be directly or indirectly
affected by any order
made by the Court and the opportunity that those persons or groups
have had to present evidence and argument
to the Court. These factors
will need to be considered in the light of the facts and
circumstances of each case.
[18] Mr
Hiemstra submitted on behalf of the first respondent that the
applicant's interest and involvement in immigration law did
not
constitute a sufficient legal interest to justify its standing in
terms of section 38(1) of the Constitution. A statutory right
to
comment in terms of the provisions of
section 7
of the
Immigration
Act
was
not a fundamental right protected by the Bill of Rights.
In any event the applicant's right to comment was not being denied
nor threatened,
but only delayed until such time as the
section 7
procedure came into operation. The same applied to members of the
public who might wish to comment on the regulations. From that
point
of view the applicant could not be said to be acting in the public
interest. Inasmuch, therefore, as the applicant did not
have
locus
standi
in terms of the Constitution, it likewise had no
locus
standi
in terms of the common law.
[19] Under the heading "enforcement
of rights" section 38 of the Constitution provides thus:
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed
or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court
are:
anyone acting in their (
sic
)
own interest;
anyone acting on behalf of
another person who cannot act in their (
sic
) own name;
anyone acting as a member of,
or in the interest of, a group or class of persons;
anyone acting in the public
interest; and
an association acting in the
interest of its members.
[20] The
concept of a "right" in the context of section 38(1) is not
restricted to the rights specified under the various
headings
contained in the Bill of Rights. The Bill of Rights is described in
wide terms in section 7(1) as "a cornerstone of
democracy"
that "enshrines the rights of all people in our country and
affirms the democratic values of human dignity,
equality and
freedom". The "rights of all people" must necessarily
include their right to participate in the democratic
process by being
enabled to comment upon or otherwise be involved in the law-making
process. If they were excluded therefrom, mere
lip service would be
paid to the democratic values of human dignity, equality and freedom
underlying the Bill of Rights. Members
of the public, including the
applicant, should have an unfettered right to express their views on
proposed legislation and other
statutory enactments, such as
regulations relating thereto.
[21] In
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA
984
(CC) at 1082G-H (para 165) Chaskalson P stated as follows on the
issue of standing:
Whilst it is important that this Court
should not be required to deal with abstract or hypothetical issues,
and should devote its
scarce resources to issues that are properly
before it, I can see no good reason for adopting a narrow approach to
the issue of standing
in constitutional cases. On the contrary, it is
my view that we should rather adopt a broad approach to standing.
This would be consistent
with the mandate given to this Court to
uphold the Constitution and would serve to ensure that constitutional
rights enjoy the full
measure of the protection to which they are
entitled. Such an approach would also be consistent in my view with
the provisions of
s 7(4) of the Constitution [ie the interim
Constitution, Act 200 of 1993] on which counsel for the respondents
based his argument.
[22] Similarly in
Ngxuza and Others v
Permanent Secretary, Department of Welfare, Eastern Cape, and Another
2001 (2) SA 609
(ECD) at 618J-619F Froneman J said the following
in regard to section 38 of the Constitution:
Section
38 is new and introduces far-reaching changes to our common law of
standing â¦
There is no cogent reason for a
restrictive interpretation of the provisions of the section because
of the narrow content given to
standing under the common law â¦
Particularly in relation to so-called
public law litigation there can be no proper justification of a
restrictive approach. The principle
of legality implies that public
bodies must be kept within their powers. There should, in general, be
no reason why individual harm
should be required in addition to the
public interest of the general community. Public law litigation may
also differ from traditional
litigation between individuals in a
number of respects. A wide range of persons may be affected by the
case. The emphasis will not
only be backward-looking, in the sense of
redressing past wrongs, but also forward-looking, to ensure that the
future exercise of
public power is in accordance with the principle
of legality â¦All this speaks against a narrow interpretation of the
rules of standing.
It is true that the nature of public
law litigation creates problems of its own, namely that of proper
representation. The kind of
problems that may arise are those
associated with ensuring (1) that only those who wish to be involved
in the case are; (2) that
those who wish to be involved are given the
chance to make the representations they may wish to make; and (3)
that the party presenting
the case adequately represents future
interests. These problems are, however, not factors that militate
against a broad view of standing.
At most they require safeguards to
ensure the broadest and most effective representation in and
presentation of public interest litigation.
At 620A-B the learned judge continued:
The
provisions of s 38 are not self-explanatory in a single unambiguous
way. They may be interpreted and applied in different ways,
with
enormously varied consequences. This does not mean that I am entitled
simply to interpret the section in the manner that I would
like to.
The interpretation has to be done within the constraints of legal
reasoning, one of them being that like cases should be
treated alike.
This principle lies at the heart of our law of precedent.
[23] We respectfully endorse the
approach in both these matters. Not only does it accord with
fundamental democratic values and principles,
but it is also
expressed in eminently rational and logical terms. The ancient values
of justice, fairness, reasonableness, good faith
and good morals or
public policy require a flexible approach to matters of
locus
standi
, particularly where private or public interests cannot
otherwise be protected.
[24] In the present matter no
suggestion was made as to any alternative way in which redress could
be afforded the applicant or other
interested members of the public.
Nor was it suggested that the issues at stake are purely academic or
hypothetical. See in this
regard the judgments in
Zantsi v Council
of State, Ciskei, and Others
1995 (4) SA 618
(CC) at 619 B (para
7);
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell
NO and Others
1996 (1) SA 984
(CC) at 1082 C-F (para 164);
Port
Elizabeth Municipality v Prut NO and Another
1996 (4) SA 318
(ECD) at 324H-325F.
[25] We are, therefore, quite
satisfied, on consideration of all the relevant facts and
circumstances mentioned above, that the applicant
was indeed acting
in its own and in the public interest when it resolved to bring this
application. On the view we take of the first
respondent's obligation
to comply with the provisions of
section 7
of the
Immigration Act
>,
the applicant was perfectly justified in bringing this application,
just as it was justified in bringing the previous application
heard
by our learned brethren Blignault and Davis JJ.
[26] It follows that we must needs hold
that the applicant has, at all relevant times, had the requisite
locus standi
to bring the present application. This brings us
to the major issue in this matter, namely whether or not the first
respondent was
enjoined to comply with the provisions of
section 7
of
the
Immigration Act
>.
THE APPLICABILITY OF SECTIONS 7 AND
52 OF THE
IMMIGRATION ACT
[27
] Although
the
Immigration Act
13 of 2002
was assented to by the second
respondent on 30 May 2002, only
sections 4
,
5
and
52
thereof have
come into operation.
Section 4
establishes an Immigration Advisory
Board (the âBoardâ),
section 7
deals with the requirements for
the making of regulations and
section 52
contains transitional
provisions relating to the functions of the Board and the Department
of Home Affairs. For the rest, the predecessor
of this Act, namely
the
Aliens Control Act
96 of 1991 (as amended) remains in
force, as do the regulations pertaining thereto. In addition to these
regulations there is an extensive
consular code which, although
unpublished, governs the so-called "aliens control regime".
By virtue of the order of this
court issued on 11 March 2003 and
extended on 17 March 2003, this regime continues to function, at
least until 7 April 2003 when
the applicant's application for leave
to appeal will be heard by this court.
[28]
Section 7
of the
Immigration
Act
reads
as follows:
7 (1) 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 â
publish and table in Parliament his or her intention of
adopting regulations specifying their subject matter and soliciting
public
comment during a period not shorter than 21 calendar days;
having considered public
comments received, publish and table in Parliament draft regulations
soliciting further comments during
a period not shorter than 21
calendar days; and
publish the final regulations
together with a summary of comments which have not been accommodated
and the reasons for their rejection.
(2) Only
subsection (1)(b) and (c) shall apply in respect of any regulations
which this Act requires to be prescribed from time
to time.
(3)
The Board may request the Minister to â
reconsider any intended
regulations prior to their promulgation; or
consider the need to adopt,
repeal or amend regulations.
(4)
Regulations shall be consistent with this Act, and shall not
disregard the advice of the Board and public comments in an arbitrary
or capricious manner: Provided that any regulation made in terms of
this section shall be tabled within 30 days after its promulgation
if
Parliament is in session and if Parliament is in recess when the
regulation is published, within 12 days after the resumption
of the
session.
[29] If for some or other reason the Board has not
been constituted and become operational, the first respondent still
has the power,
in terms of the transitional provisions contained in
section 52 of the Act, to make any regulation that may be required.
This section
provides as follows:
52 (1) Until the Board
is duly constituted and operational, any regulation required in terms
of this Act shall be prescribed.
(2) Subject to this Act, any regulations
adopted under the previous Act shall remain in force and effect until
repealed or amended.
(3) The Board shall be convened within 90
days of the coming into force of this Act.
[30] In
the present matter the regulations invalidated by this court were
made by the first respondent in terms of section 52, read
with
section 51, of the Act. This may be contrasted with the previous
regulations struck down by Blignault and Davis JJ, where they
were
made in terms of section 52 read with section 7 of the Act. In the
present case there has hence been a deliberate omission of
any
reference to section 7. The reference to section 51, although not yet
operational, was clearly to provide for the incorporation
of the
âtransitional definitionsâ of âprescribeâ and âregulationâ
as they occur in section 52(1) of the Act. The question
arising
immediately, of course, is whether the first respondent was empowered
by section 52 to make any regulation not falling within
the ambit of
section 7.
[31] In this regard the applicant avers
that the first respondent is not empowered in terms of section 52 to
make regulations. This
section provides simply that he may make
regulations before the Board is constituted and becomes operational.
Such regulations must,
however, comply with section 7 of the Act. If
they do not, the regulations are invalid. On this point Mr Katz, in
his argument on
behalf of the applicant, relied on the following
dictum
of Chaskalson P in
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) at
687H-688A (para 20):
The
exercise of all public power must comply with the Constitution, which
is the supreme law, and the doctrine of legality, which
is part of
that law. The question whether the President acted
intra vires
or
ultra vires
in bringing the Act into force when he did is,
accordingly, a constitutional matter. The finding that he acted
ultra
vires
is a finding that he acted in a manner that was
inconsistent with the Constitution.
On this
basis, Mr Katz argued, this court should find that the first
respondent acted
ultra vires
in making the regulations, which
were hence unconstitutional and invalid.
[32] Mr Katz emphasised that this
interpretation of section 7 as read with section 52 of the Act was in
accordance with the plain
meaning of the language used in the Act. No
provision was made in the Act for interim regulations, as submitted
by the first respondent.
Section 7 was peremptory and any regulation
made in terms of section 52 would have to comply therewith. Mr Katz
argued further that
the first respondentâs interpretation of the
Act would bring it into conflict with the
Promotion of
Administrative Justice Act
3 of 2000
and also with the principle
of âparticipatory democracyâ. For present purposes it is not
necessary to deal with these arguments.
[33] In his affidavit opposing the
present application, the first respondent avers that the provisions
of section 7 of the Act are
not applicable to regulations made during
the transitional period in accordance with section 52 thereof.
Sections 7(1) and 52(1),
he says, contain "distinct powers with
different scope and latitude": the power to issue regulations in
terms of section
52 is not intended to circumvent the provisions of
section 7, but rather to "co-exist" with the power to make
regulations
in terms of section 7. In this regard Mr Hiemstra
submitted on behalf of the first respondent that no regulation in
terms of section
7 can be made before the Board is duly constituted
and operational. Section 52 provides specifically for a period of
transition when
regulations will be required prior to the Board's
being constituted and becoming operational. Such regulations are in
fact of an
interim nature and will continue to exist only until such
time as regulations in terms of section 7 have been produced.
[34] This argument was taken a step
further in the joint affidavit of the third and fourth respondents,
who purported to assist the
court with their assessment of the
applicable statutory regime. According to them the intention of the
legislature in enacting the
regulations was to empower the first
respondent to promulgate âspecific and limited regulations for a
transitional period and until
the Immigration Advisory Board was
constitutedâ. Such regulations would be of limited duration and
would not require the advice
of the Board as would be the case where
regulations are made in terms of section 7 of the Act. Section 52 was
limited in ambit and
was restricted to regulations
required
in
terms of the Act, as opposed to section 7 regulations that were to be
âconducive to the implementation of the Act, which has
a much wider
ambit of operationâ. Thus the legislation provided for âtwo
distinct regimes of regulation, one in terms of section
7 and a
transitional one in terms of section 52â.
[35] Mr Heunis, on behalf of the third
and fourth respondents, conceded that it is for this court to
interpret the relevant legislation.
He supported their two regime
interpretation, however, submitting that section 52(1) should be
understood to mean that, until such
time as the Board has been
constituted and become operational, the first respondent is enjoined
to make and publish, by way of regulation,
general and specific rules
required in terms of the Act. Such regulations may not go beyond what
is strictly required by the Act,
expressly or by implication, and
must be of a transitional nature, in the sense that they will endure
only until the Board is indeed
duly constituted and operational.
[36] The fundamental
rules relating to the interpretation of statutes are trite. This
court is enjoined to establish the intention
of the legislature from
the ordinary grammatical meaning of the words used in the provision
or provisions requiring interpretation.
In doing so it must
necessarily take cognisance of the aims and ambit of the legislation
in question, with reference to the particular
context in which it
occurs. The
locus classicus
in this regard appears in the
judgment of Schreiner JA in
Jaga v Dönges NO and Another; Bhana v
Dönges NO and Another
1950 (4) SA 653
(A) at 662G-663A:
Certainly no less
important than the oft repeated statement that the words and
expressions used in a statute must be interpreted according
to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may be useful to stress
two points
in relation to the application of this principle. The first is that
"the context", as here used, is not limited
to the language
of the rest of the statute regarded as throwing light of a dictionary
kind on the part to be interpreted. Often of
more importance is the
matter of the
statute, its apparent scope and purpose, and,
within limits, its background. The second point is that the approach
to the work of
interpreting may be along either of two lines. Either
one may split the inquiry into two parts and concentrate, in the
first instance,
on finding out whether the language to be interpreted
has or appears to have one clear ordinary meaning, confining a
consideration
of the context only to cases where the language appears
to admit of more than one meaning; or one may from the beginning
consider
the context and the language to be interpreted together.
See also
University
of Cape Town v Cape Bar Council and Another
1986 (4) SA 903
(A)
at 913I-914C;
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer
1997 (1) SA 710
(A) at 727H-728A.
[37] In the present case
I believe it is justified to consider the language and context
together in interpreting the relevant provisions
of the
Immigration
Act
>. This will of necessity entail taking into account its
background to the extent that it may be required for purposes of
establishing
and comprehending its scope and purpose. It will
likewise require a brief consideration of its content and general
arrangement with
a view to ascertaining, in particular, the intention
of the legislature in enacting the provisions of
sections 7
and
52
,
which came into operation simultaneously on 20 February 2003. In
addition cognisance must be taken of the provisions of
section 4
,
which is the only other section of the Act to have come into
operation, namely on 26 February 2003.
[38] It appears to be common cause that the
existing Act relating to immigration, namely the
Aliens Control
Act
96 of 1991, as supplemented by comprehensive regulations and
an equally comprehensive consular code, may, with some justification,
be regarded as far from perfect. It has clearly required extensive
and radical amendments, alternatively replacement by a wholly
new
Act. The legislature opted for the latter course and the
Immigration
Act
13 of 2002
was assented to and signed by the second
respondent as long ago as 30 May 2002. While the conception of the
Act was relatively easy,
its birth as a fully-fledged statute
governing all aspects of immigration law in this country, has been
fraught with difficulties.
This may be attributable,
inter alia
,
to over-hastiness in attempting to get the Act on track and, perhaps,
to old-fashioned bureaucratic bungling. One may only hope
that, after
having suffered two unsuccessful attempts at publishing immigration
regulations, which have been decisively struck down
by this court,
the first respondent will insist that his departmental house be
brought in order to prevent any repetition thereof.
[39] The
Immigration Act
states
, in its
preamble, that it is directed at "providing for the regulation
of admission of foreigners to, their residence in, and
their
departure from the Republic and for matters connected therewith".
It "aims at setting in place a new system of immigration
control" which will, in general, be efficiently managed and
administered. Its objectives are set out in some detail in
section 2.
Foremost among them, as appears from
section 2(1)(a)
, is "[p]romoting
a human-rights based culture in both government and civil society in
respect of immigration control".
[40] The structures of immigration control are
dealt with side by side with the said objectives. It sets out,
inter
alia
, the powers of the Department of Home Affairs and of its
chief officers
(section 3)
, the establishment
(section 4)
and
functions
(section 5)
of an Immigration Advisory Board and the making
of regulations (section 7). This is followed by provisions relating
to: admission
and departure
(section 9)
, temporary residence
(sections 10
to
24
), permanent residence
(sections 25
to
28
),
exclusions and exemptions
(sections 29
to
31
), enforcement and
monitoring
(sections 32
to
36
), immigration courts
(section 37)
,
duties and obligations
(sections 38
to
45
), miscellaneous matters
(sections 46
to
48
), offences
(sections 49
to
50
) and transitional
provisions
(sections 51
to
55
).
[41]
Section 4
which, as mentioned before, has
already come into operation and provides for the establishment of an
Immigration Advisory Board,
deals in some detail with the membership
of the Board and the proceedings to be followed at its meetings. Its
main function, to advise
the Minister of Home Affairs on various
matters, including the contents of immigration regulations, appears
in
section 5
, which has not yet come into operation. Similarly the
general definitions, appearing from
section 1
, and transitional
definitions, as set forth in
section 51
, are not yet operative. This
does not, of course, mean that they may be ignored for purposes of
interpreting
sections 7
and
52
respectively.
[42] It is clear that the first respondent derives
his power to make regulations "called for, or conducive to, the
implementation"
of the Act from the provisions of section 7(1).
That is certainly the reason why, prior to the Act coming into
operation, the second
respondent was called upon to proclaim that
section 7, together with sections 4 and 52, become operational at an
earlier date than
the remainder of the Act. It was obviously directed
at enabling the first respondent to establish the Board and to
prepare the necessary
regulations before the Act became functional in
immigration law and practice. The Board could then be duly
constituted in terms of
section 4 of the Act and prepare itself for
executing its function of advising the first respondent, in terms of
section 5(a) of
the Act, on matters such as the content of
regulations. In terms of section 7(3) the Board would then be
empowered to exercise its
right to request the Minister to reconsider
intended regulations prior to their promulgation, or to consider the
need to adopt, repeal
or amend them. In the meantime "any
regulation required" in terms of the Act could be made by the
first respondent by virtue
of the transitional provisions of section
52(1), without consultation with the Board.
[43] Does this mean that the regulations made in
terms of section 52(1) need not comply with the provisions of section
7? We have
carefully considered the various arguments put forward by
counsel in this regard and have come to the conclusion that, although
section
52 is dealt with under the heading "transitional
provisions", the regulations made in terms of section 52(1) are
not transitional,
provisional or interim regulations. This appears
from the following.
[44] Nowhere in the Act is provision made for any
other form of regulations than "draft" or "final"
regulations
as they occur in sections 7(1)(b) and (c) respectively.
In section 1(xxxii) of the Act regulations are defined as "general
rules
adopted by the Minister after consultation with the Board in
terms of this Act and published". In the "transitional
definition"
contained in section 51(iv), again, regulations are
defined as âboth general and specific rules adopted by the Minister
and publishedâ.
This clearly makes provision for regulations in
respect of which the Board has not been consulted, either because it
has not yet
been established or because it is not yet operational.
[45] Section 52(1) makes it clear that the
regulation in question must be "required in terms of this Act"
and must be "prescribed".
"Prescribe" in this
sense means, according to section 51(i), âto provide through
regulationsâ, and âprescribedâ
has a corresponding meaning.
This may be compared with the definition in section 1(xxix), where
âprescribedâ is said to mean
âprovided for by regulationâ.
The verb âto prescribeâ has a corresponding meaning, whereas
âprescribed from time to timeâ
refers exclusively to the use of
these words in section 7(2) of the Act, in which event, as provided
in section 7(2), only sections
7(1)(b) and (c) are applicable.
Nowhere is it suggested that "prescribed" in section 52(1)
means anything other than "prescribed
by regulation". There
is hence not the slightest difference between the definition of
"prescribed" in section 1(xxix)
and that in section 51(i).
On the contrary, they appear to bear, and to have been intended to
bear, an identical meaning.
[46] It follows that there is only one substantial
difference between regulations made in terms of section 7(1) and
those made in
terms of section 52(1) of the Act. In the former, the
Board has the right, in terms of section 7(3), to give the Minister
advice
in regard to existing or intended regulations. In the latter
the Minister is enabled to make regulations without such input. This
does not, however, mean that the provisions of section 7(1) may
otherwise be ignored when making regulations in terms of section
52(1). On the contrary, it is essential that they comply with all the
prescribed conditions, more specifically as set forth with
great
clarity in sections 7(1)(a), (b) and (c).
[47] In our view interested members of the public
must undoubtedly have the right to comment on intended and draft
regulations before
they are brought into force. If this were not so,
the Minister would have the unfettered right to make "interim"
regulations
of whatever nature, ambit and effect he or she might
wish, regardless of the democratic right of interested persons to
make their
input in regard thereto. They might simply be confronted
with arbitrary, capricious or even oppressive regulations as a
fait
accompli
and would be compelled to bide their time until new or
amended regulations are duly made in terms of section 7. By the time
the so-called
"interim" regulations have been supplanted by
such new regulations, untold damage might already have been caused
and suffered.
Such a situation could never have been envisaged by the
legislature when formulating and finalising the new
Immigration
Act
>. It would be in conflict with the most basic of the
fundamental and eternal values underlying our Constitution and,
indeed, required
by the Rule of Law and the precepts of legality.
[48] It follows that, inasmuch as the immigration
regulations published on 21 February 2003 purport to have been issued
in terms of
section 52 read with section 51 of the
Immigration
Act
>, the first respondent was nevertheless enjoined to comply
with the provisions of section 7 of the Act. As a result of the first
respondent's failure to comply therewith, the regulations in question
were unconstitutional and invalid.
THE
REQUEST FOR SUSPENSION OF THE ORDER OF INVALIDITY
[49] Mr
Hiemstra argued in the alternative that, if this court should be
disposed to grant the relief sought by the applicant, it
should, in
terms of section 172(1)(b)(ii) of the Constitution, suspend the
declaration of invalidity for a period of one year. This
would have
the effect that the invalid regulations would come into operation on
12 March 2003, on the same date as the remainder
of the
Immigration
Act
>. The
Aliens Control Act
and its regulations would be
repealed on such date, leaving the new Act and new regulations
relating to such Act in place. Such an
order would be just and
equitable, as required by section 172(1)(b), in that it would
eliminate the envisaged chaos that would ensue
should the old
regulations remain applicable to the new Act. At the same time it
would enable the first respondent to remedy the
defects giving rise
to the invalidity of the new regulations.
[50] In this regard Mr Hiemstra
referred to
Fose v Minister of Safety and Security
1997 (3) SA
786 (CC); 1997 (7) BCLR 851 (CC) para 94, where Kriegler J stated
that, "when courts give relief, they attempt to
synchronise the
real world with the ideal construct of a constitutional world â¦".
This means, Mr Hiemstra submitted, that
a court should not only
consider what is appropriate relief under the circumstances, but also
what the effect of its order on the
general public will be. It must
take into account the interests of all persons affected thereby. It
must also determine whether the
declaration of invalidity will give
rise to a situation less consistent with the Constitution than the
existing situation. This accords
with what was said by Mokgoro J in
First National Bank of South Africa Ltd v Land and Agricultural
Bank of South Africa and Others; Sheard v Land and Agricultural Bank
of South Africa and Another
2000 (3) SA 626 (CC) para 13:
To
suspend an order in terms of s 172(1)(b)(ii) it is required that the
purpose served by the challenged statute outweighs the constitutional
violation effected under its provisions.
[51] Mr
Hiemstra launched a scathing attack on the existing
Aliens Control
Act
, which has been the subject of a number of successful
constitutional and administrative challenges. This has resulted in
statutory
lacunae
that require to be addressed forthwith by
promulgation of the
Immigration Act
and
its regulations.
Should the old regulations continue to exist side by side with the
new Act, migration control would come to a standstill
in that
immigration officials at entry and exit points on South African
borders and at a number of foreign offices would not be able
to
implement the new Act.
[52] In his argument on behalf of the
applicant Mr Katz submitted that the first respondent had not placed
sufficient facts before
the court to persuade it that it would be
just and equitable to suspend the order of invalidity. There was no
reason why the old
Act and old regulations could not continue in
force until such time as the new regulations had been properly
promulgated. This argument,
of course, was based on the amended
prayer requesting that the second respondent's proclamation be
partially set aside. As mentioned
in our introductory observations,
however, the said amendment was not granted. It was only the
supplementary order of this court
that had the effect that the Act
has also been on hold pending the first respondent's application for
leave to appeal.
[53] Section 172(1) reads thus:
When deciding a constitutional
matter within its power, a court -
must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; and
may make an order that is just
and equitable, including -
an order limiting the
retrospective effect of the declaration of invalidity; and
an order suspending the
declaration of invalidity for any period and on any conditions to
allow the competent authority to correct
the defect.
[54] This
section supplanted sections 98(5) and (6) of the interim
Constitution, Act 200 of 1993, which were formulated as follows:
In the event of the
Constitutional Court finding that any law or any provision thereof
is inconsistent with this Constitution, it
shall declare such law or
provision invalid to the extent of its inconsistency: Provided that
the Constitutional Court may, in
the interests of justice and good
government, require Parliament or any other competent authority,
within a period specified by
the Court, to correct the defect in the
law or provision, which shall then remain in force pending
correction or the expiry of
the period so specified.
Unless the Constitutional Court
in the interests of justice and good government orders otherwise,
and save to the extent that it
so orders, the declaration of
invalidity of a law or provision thereof -
existing at the commencement of
this Constitution, shall not invalidate anything done or permitted
in terms thereof before the coming
into effect of such declaration
of such declaration of invalidity; or
passed after such commencement,
shall invalidate everything done or permitted in terms thereof.
[55] In
Executive Council of the Western Cape Legislature and Others v
President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA
877
(CC);
1995 (10) BCLR 1289
(CC) para 106 Chaskalson P described
the effect of this section in the following terms:
Section
98(5) permits this Court to put Parliament on terms to correct the
defect in an invalid law within a prescribed time. If exercised,
this
power has the effect of making the declaration of invalidity subject
to a resolutive condition. If the matter is rectified,
the
declaration fall away and what was done in terms of the law is given
validity. If not, the declaration of invalidity takes place
at the
expiry of the prescribed period, and the normal consequences
attaching to such a declaration ensue.
In regard
to the need for the provisions of sections 98(5) and (6) the learned
judge said (in para 107):
The
powers conferred on the Courts [sic] by sections 98(5) and (6) are
necessary powers. When the [interim] Constitution came into
force
there were many old laws on the statute book which were inconsistent
with the Constitution. If all of them were to have been
struck down
and all action taken under them declared to be invalid there could
have a legislative vacuum and chaotic conditions.
Sections 98(5) and
(6) enable the Court to regulate the impact of a declaration of
invalidity and avoid such consequences. There
may also be situations
in which it is necessary for the Court to act to avoid or control the
consequences of a declaration of invalidity
of post-constitutional
legislation where the result of invalidating everything done under
such legislation is disproportional to
the harm which would result
from giving the legislation temporary validity.
[56] In
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC) para 32 O'Regan J elucidated this approach
further when she said:
Central
to a consideration of the interests of justice in a particular case
is that successful litigants should obtain the relief
they seek. It
is only when the interests of good government outweigh the interests
of the individual litigants that the Court will
not grant relief to
successful litigants. In principle, too, the litigants before the
Court should not be singled out for the grant
of relief, but relief
should be afforded to all people who are in the same situation as the
litigants ⦠On the other hand ⦠we
should be circumspect in
exercising our powers under s 98(6)(a) so as to avoid unnecessary
dislocation and uncertainty â¦
[57] On what was required to persuade a
court to suspend a declaration of invalidity in terms of section
98(5) aforesaid, see
Mistry v Interim Medical and Dental Council
of South Africa and Others
1998 (4) SA 1127
(CC) para 37. Sachs J
made it quite clear that any party requesting such suspension had a
substantial
onus
to discharge:
Section
98(5) authorises this Court 'in the interests of justice and good
government' to require Parliament to correct within a specified
time
a defect in the law found to be invalid. No information was laid
before us, however, as to why in the present matter it would
be in
the interests of justice and good government for this Court to make
such an order. A party wishing the Court to make such an
order must
provide it with reliable information to justify it doing so. The
requisite information will necessarily depend for its
detail on the
nature of the law in question and the character of the defect to be
corrected. Yet, as a general rule, a government
organ or other party
wishing to keep an unconstitutional provision alive should at least
indicate the following: what the negative
consequences for justice
and good government of an immediately operational declaration of
invalidity would be; why other existing
measures would not be an
adequate alternative stop-gap; what legislation on the subject, if
any, is in the pipeline; and how much
time would reasonably be
required to adopt corrective legislation. Parties interested in
opposing such an order should be given an
opportunity to motivate
their opposition. Legal representatives should ensure that they have
appropriate and timeous instructions
on the matter, and not do their
best while on their feet or else rely on a rushed telephone call at
the tail-end of the hearing.
See also
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC) para 51;
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC) para 42.
[58] That these principles are in like
manner applicable to section 172(1)(b)(ii) of the present
Constitution appears with great lucidity
in
Lesapo v North West
Agricultural Bank and Another
1992 (12) BCLR 1420
(CC), where
Mokgoro J stated in para 33:
Counsel
agreed that, should section 38(2) be found to be unconstitutional and
invalid, this Court would need to suspend its order
of invalidity in
terms of section 172(1)(b)(ii) of the Constitution. However, there
was no evidence to support that submission, nor
are there any other
grounds for so doing. This Court has, in several of its judgments,
stressed the importance of laying a proper
foundation for the
granting of ancillary orders of suspension of invalidity,
retrospectively or prospectively. Although the rule
was formulated in
terms of section 98(6) of the interim Constitution, which required
this Court to take into account "the interests
of justice and
good government" before suspending an order of invalidity, these
requirements are included in section 172(1)(b)(ii)
of the
Constitution, which provides that an order must be "just and
equitable". Such evidence would relate to what the
effect of the
order would be on the successful litigant and on those prospective
litigants in positions similar to that of the former,
as well as the
effect on the administration of justice or State machinery. No such
evidence is before this Court. There is therefore
no basis for this
Court to suspend an order of invalidity.
[59] Reference
may also be made to
First National Bank of South Africa Ltd v Land
and Agricultural Bank of South Africa and Others; Sheard v Land and
Agricultural Bank
of South Africa and Another
[2000] ZACC 9
;
2000 (3) SA 626
(CC) para 13, where Mokgoro J observed that suspension of an order in
terms of section 172(1)(b)(ii) of the Constitution requires
"that
the purpose served by the challenged statute outweighs the
constitutional violation effected under its provisions".
See
further
Hoffmann v South African Airways
2000 (11) BCLR 1211
(CC) para 42;
S v Steyn
2001 (1) SA 1146
(CC) para 45.
[60] Section 172(1)(b)(ii) of the
Constitution gives this court the discretion to suspend its
declaration of invalidity of the new
regulations if it should be
satisfied that it is just and equitable to do so. This, in our view,
encompasses a reasonable or rational
approach to the realities of the
situation. According to the first respondent the reality was that the
introduction of the new Act
without its concomitant regulations would
lead to a chaotic situation. The nature of the "chaos"
envisaged was dealt with
in sweeping terms in the first respondent's
answering affidavit and was somewhat embroidered upon in Mr
Hiemstra's argument.
[61] It may well be that the old
regulations would cause inconvenience if applied to the new Act in
that they may, in several respects,
not be consistent or compatible
therewith. The legislature must have given this possibility
consideration, however, in enacting that
the old regulations would
remain in force until repealed or amended. This means that it must
have envisaged that the new Act might
come into operation before new
regulations were properly promulgated. Certainly it did not regard
the continuation of the old rules
alongside the new Act as creating a
potentially chaotic situation. It could not, in our view, have
believed that migration control
would come to a standstill and that
immigration officials would not be able to implement the new Act, as
submitted by Mr Hiemstra.
[62] With reference to the authorities
cited above we do not believe that the present case may, on the facts
and circumstances placed
before us, be regarded as giving rise to "a
legal vacuum and chaotic conditions" (
Western Cape
Legislature
case cited in par 55 above). Nor is it a case where
"the interests of good government outweigh the interests of the
individual
litigants" or where "unnecessary dislocation and
uncertainty will arise should the declaration of invalidity not be
suspended
(
Bhulwana
case cited in par 56 above). Section 52(2)
of the Act was, in our view, accepted by the legislature as an
"adequate stop-gap"
(
Mistry
case cited in par 57
above) pending the promulgation of new regulations in terms of the
new Act.
[63] It follows that we have not been
persuaded that it is just and equitable or, for that matter, in the
interests of justice and
good government to suspend the declaration
of invalidity.
[64] For the reasons set forth above we
confirm the following order made on 11 March 2003:
The
Immigration Regulations made by the first respondent and published
in the
Government Gazette
No 24952 (Notice 487 of 2003) on 21
February 2003 are declared unconstitutional and invalid.
The
first respondent is required to comply with the provisions of
section 7
of the
Immigration Act
13 of 2002
in making new
immigration regulations.
The
first respondent is ordered to pay all disbursements incurred by the
applicant, including those consequent upon the employment
of two
counsel.
D H VAN
ZYL
Judge of the High Court of South
Africa
Cape of
Good Hope Provincial Division
I agree. The order is confirmed.
J M
HLOPHE
Judge-President
Cape of Good Hope Provincial Division
of the
High Court of South Africa