Minister of Home Affairs and Others v Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All SA 21 (SCA) (28 November 2003)

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[2003] ZASCA 142
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Minister of Home Affairs and Others v Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All SA 21 (SCA); 2004 (2) BCLR 120 (SCA); 2004 (4) SA 326 (SCA) (28 November 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO
: 10/2003
In the matter between :
THE MINISTER OF HOME AFFAIRS
First
Appellant
THE DIRECTOR-GENERAL, DEPARTMENT OF HOME
AFFAIRS
Second Appellant
THE CHAIRPERSON: STANDING COMMITTEE FOR
REFUGEE AFFAIRS
Third
Appellant
and
MURIEL MILLIE WATCHENUKA
First
Respondent
CAPE TOWN REFUGEE CENTRE
Second
Respondent
_________________________________________________________________________
Before: HOWIE P, NAVSA, MTHIYANE,
NUGENT & HEHER JJA
Heard: 10 NOVEMBER 2003
Delivered:
28 NOVEMBER
2003
Summary: Applicants for asylum –
right to undertake employment and to study.
_________________________________________________________________________
J
U D G M E N T
_________________________________________________________________________
NUGENT JA
NUGENT JA:
[1] This appeal concerns the rights of
asylum seekers – people who claim to be taking refuge in this
country from persecution or
conflict elsewhere – and in particular
the extent to which they may be prohibited from being employed and
from studying while they
are waiting to be recognised as refugees.
[2] The rights and obligations of those who
seek asylum are governed by the
Refugees Act No 130 of 1998
, which
was enacted to give effect to South Africa's international
obligations to receive refugees in accordance with standards and
principles established in international law. The effect of
s 2
of the Act is to permit any person to enter and to remain in this
country for the purpose of seeking asylum from persecution on account
of race, religion, nationality, political opinion or membership of a
particular social group, or from a threat to his or her life
or
physical safety or freedom on account of external aggression,
occupation, foreign domination or disruption of public order.
[3] A person who wishes to be given asylum
must apply to be recognised as a refugee. If that recognition is
granted the refugee –
and his or her dependants – enjoys the
various rights specified in
s 27
of the Act, which include the
right in certain circumstances to apply for permanent residence, the
right to a South African travel
document, the right to seek
employment, and the right to receive basic health services and
primary education. It is implicit in that
section (particularly when
it is read together with the Aliens Control Act No 96 of 1991 and the
Immigration Act No 13 of 2002
that replaced it)
1
that an applicant for asylum has none of those rights until he or she
is recognised as a refugee.
[4] An application for asylum must be made
in the prescribed form to a Refugee Reception Officer at one of the
Refugee Reception Offices
that are established in terms of s 8
of the Act. The Refugee Reception Officer must refer the application
to a Refugee Status
Determination Officer who is required to make
appropriate enquiries and to determine whether or not the applicant
qualifies for recognition
as a refugee. If the application is refused
the applicant is entitled to appeal.
2
[5] Section 22(1) of the Act provides that
once an applicant has applied for asylum:
‘
The Refugee Reception Officer must, pending the
outcome of [the] application … issue to the applicant an asylum
seeker permit in
the prescribed form allowing the applicant to
sojourn in the Republic temporarily, subject to any conditions,
determined by the Standing
Committee, which are not in conflict with
the Constitution or international law and are endorsed by the Refugee
Reception Officer
on the permit.’
[6] The Standing Committee referred to in
that section is the Standing Committee for Refugee Affairs
established by s 9 of the
Act. The Standing Committee comprises
a chairperson (the third appellant) and members appointed by the
Minister of Home Affairs (the
first appellant) and it ‘must
function without any bias and must be independent’ (s 9(2)).
[7] The powers and duties of the Standing
Committee are, amongst others, to formulate and implement procedures
for the grant of asylum,
to regulate and supervise the work of the
Refugee Reception Offices, to advise the Minister and the Director
General, to review certain
decisions made by Refugee Status
Determination Officers, and to monitor such decisions (s 11).
Section 11(h) provides that the
Standing Committee
‘
must determine the conditions relating to study or
work in the Republic under which an asylum seeker permit may be
issued.’
[8] Section 38(1) of the Act authorises the
Minister of Home Affairs to make regulations relating to certain
matters including:
‘
(c) the forms to be used under certain circumstances
and the permit to be issued pending the outcome of an application for
asylum;
…
the conditions of sojourn in the Republic of an asylum
seeker, while his or her application is under consideration.’
[9] The
Refugees Act came
into operation on
1 April 2000. On 6 April 2000 the Refugee Regulations (Forms and
Procedure) 2000 were promulgated.
3
Regulation 7(1)(a) provides that a permit issued in terms of s 22
of the Act (i.e. the permit issued to an asylum seeker pending
the
determination of an application for asylum)
‘
must be in
the form and contain substantially the information prescribed in
Annexure 3 to these Regulations.’
[10] The form prescribed by Annexure 3
contains various conditions that the permit-holder is required to
adhere to and includes a
condition in the following terms:
‘
EMPLOYMENT AND STUDY PROHIBITED’
.
The effect of Regulation 7(1)(a), when read together with the
prescribed form, is that every asylum seeker is prohibited by the
conditions in his or her permit from undertaking employment or from
studying.
[11] The first respondent applied for
asylum on 2 February 2002 after entering this country from Zimbabwe
with her disabled twenty
year old son. She alleges that she left
Zimbabwe for fear that her son would be forced to join militant
supporters of the ruling
political party in Zimbabwe who she alleged
were intimidating supporters of the political opposition. Shortly
after applying for
asylum she secured a place for her son to study at
a Cape Town college. The first respondent is a widow who is trained
as a pharmacy
technician. She alleges that her savings have been
depleted and that she needs to secure employment in order to support
herself and
her son.
[12] A permit was issued to the first
respondent as provided for in s 22(1) of the Act that included
the standard conditions
to which I have referred and she and her son
were thus prohibited respectively from undertaking employment and
from studying.
[13] The first respondent applied to the
Cape High Court for an order declaring the prohibition in Annexure 3
to the regulations to
be contrary to the Constitution and directing
the appellants to permit her and her son to be employed and to study
respectively pending
the finalisation of her application for asylum.
The second respondent – which is a voluntary association that has
amongst its objectives
the provision of assistance to applicants for
asylum – supported the application, not only in the first
respondent's interest,
but also in the interest of applicants for
asylum generally.
[14] The application came before HJ Erasmus
J who granted the relief that was sought (the judgment of the court
a
quo
is reported as
Watchenuka and Another v Minister of Home
Affairs
2003 (1) SA 619
(C)) but he granted the appellants leave
to appeal to this Court.
[15] The court
a quo
decided the
matter on a narrow ground. The learned judge pointed out that while
s 38(e) of the Act empowers the Minister in general
terms to
make regulations relating to the conditions of sojourn in the
Republic of an applicant for asylum, s 11(h) expressly
enjoins
the Standing Committee to determine the conditions relating to study
or work under which an asylum seeker permit may be issued.
In those
circumstances, the court
a quo
reasoned, ‘the Minister
cannot make regulations about conditions relating to study and work
in the Republic under which an asylum
seeker permit may be issued
without having regard to the determination made by the Standing
Committee’. It followed, said the learned
judge, that because the
Standing Committee had made no such determination at the time the
regulations were made the Minister had
no power to prohibit
employment and study. (The implication of that finding is that the
prohibition in Annexure 3 to the regulations
would have been
intra
vires
if it had accorded with a prior determination that had been
made by the Standing Committee).
[16] I agree that the Minister had no
authority to impose the prohibition but my reasons for reaching that
conclusion – and consequently
its implications – differ from
those of the court
a quo.
[17] Section 11(h) of the Act confers upon
the Standing Committee the power and the duty to determine the
conditions under which a
permit may be issued in so far as those
conditions relate to work and study. Provided that its decision in
that regard – in other
words its determination – is properly
taken, the Act prescribes no formalities in order for that decision
to be put into effect.
The court
a quo
appears to have been of
the view that once the Standing Committee has determined such
conditions they have no effect unless translated
into law by
regulation. I see nothing in the Act to justify that conclusion. On
the contrary, it would be most unusual if the powers
expressly
conferred upon the Standing Committee were to have no effect unless
the Minister chose to exercise the separate powers
conferred upon him
by s 38 for there would be an inherent potential for the
exercise of the respective powers to be frustrated.
In my view the
Standing Committee exercises its power to determine conditions
relating to work and study, either generally or in
particular cases,
merely by making a decision to that effect. Any such determination is
given effect to by being included as a condition
in the permit that
is issued in terms of s 22(1), which expressly requires such
permits to be issued subject to, and endorsed
with, any conditions
that have been determined by the Standing Committee. No doubt the
Standing Committee might publish, and make
known to the public, the
decisions that it makes in relation to such conditions but that does
not mean that it must do so by causing
regulations to be promulgated.
[18] Having vested the power to determine
such conditions in the Standing Committee the Legislature could not
have intended the same
powers to be exercised by the Minister. It
must necessarily be implied in s 38(1)(e) of the Act that the
‘conditions of sojourn’
that he is empowered to regulate do not
include conditions relating to work or study.
[19] In
Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and
Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras 58 and 59 the following was
said:
4
‘
It seems central to the conception of our
constitutional order that the Legislature and Executive in every
sphere are constrained
by the principle that they may exercise no
power and perform no function beyond that conferred upon them by law.
At least in this
sense, then, the principle of legality is implied
within the terms of the interim constitution … There is of course
no doubt that
the common-law principles of
ultra vires
remain
under the new constitutional order. However, they are underpinned
(and supplemented where necessary) by a constitutional principle
of
legality .... In relation to legislation and to executive acts that
do not constitute ‘administrative action’, the principle
of
legality is necessarily implicit in the Constitution.’
[20] In the absence of the power to
prohibit an applicant for asylum from taking up employment, or from
studying, the Minister acted
in conflict with the Constitution in
purporting to do so and the court
a quo
correctly set aside
the prohibition in Annexure 3 of the regulations on that ground.
[21] It does not follow, however, that the
first respondent was entitled to an order directing the appellants to
permit her and her
son to be employed and to study respectively for
on the view that I take of the matter there was a further hurdle to
the granting
of that relief.
[22] At a meeting held on 18 September 2000
– well before the first respondent’s permit was issued – the
Standing Committee
itself resolved that all permits issued in terms
of s 22 of the Act must contain a condition prohibiting
employment and study
but that if an application for asylum was not
finalised within 180 days the applicant could apply to the Standing
Committee to lift
the restriction. The conditions in the first
respondent’s permit were thus in accordance with the Standing
Committee’s own decision,
quite apart from what was provided for in
the regulations. I can see no proper grounds for directing the
Standing Committee to act
in conflict with its own decision unless
that decision is itself assailable. Whether the prohibitions in the
first respondent’s
permit fall to be interfered with at all seems
to me to depend upon whether and to what extent the Standing
Committee’s own determination
might itself be unlawful.
[23] There was some suggestion in the
papers that at the time the decision was taken the Standing Committee
was improperly constituted
with the result that all its decisions are
invalid. That issue arose when the answering affidavit filed on
behalf of the appellants
revealed that the deponent was not only an
employee of the Department of Home Affairs but also a member of the
Standing Committee.
The respondents allege that that is in conflict
with s 9(2) of the Act, which requires the Standing Committee to
be ‘independent’.
Whether the Standing Committee was indeed
properly constituted was not decided by the court
a quo
and it
is also not necessary – nor desirable – that we should decide it.
The application was not brought on those grounds. The
issue arose for
the first time in reply and I am not satisfied that it was fully
canvassed. No doubt the appellants will note the
respondents’
contention and will act appropriately if they consider it necessary
to do so, but I do not think the matter falls
properly to be dealt
with in this appeal. I proceed on the assumption that the Standing
Committee was indeed properly constituted
at the time its decision
was made.
[24] In my
view the Standing Committee’s general prohibition of employment and
study for the first 180 days after a permit has been
issued is in
conflict with the Bill of Rights.
5
I consider that the general prohibition in the regulations is
unlawful for the same reasons, which constitutes a further ground
for
setting it aside.
[25] Human
dignity has no nationality. It is inherent in all people – citizens
and non-citizens alike – simply because they are
human. And while
that person happens to be in this country – for whatever reason –
it must be respected, and is protected, by
s 10 of the Bill of
Rights.
[26] The inherent dignity of all people –
like human life itself – is one of the foundational values of the
Bill of Rights. It
constitutes the basis and the inspiration for the
recognition that is given to other more specific protections that are
afforded
by the Bill of Rights. In
S v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) para 144 Chaskalson P said the following:
6
‘
The rights to life and dignity are the most important
of all human rights, and the source of all other personal rights in
chap 3.
By committing ourselves to a society founded on the
recognition of human rights we are required to value these two rights
above all
others.’
In the same case, para 328, O’Regan J
said the following:
‘
The importance of dignity as a founding value of the
new Constitution cannot be overemphasised. Recognising a right to
dignity is
an acknowledgment of the intrinsic worth of human beings:
human beings are entitled to be treated as worthy of respect and
concern.
This right therefore is the foundation of many of the other
rights that are specifically entrenched.’
[27] The freedom to engage in productive
work – even where that is not required in order to survive – is
indeed an important component
of human dignity, as submitted by the
respondents’ counsel, for mankind is pre-eminently a social species
with an instinct for
meaningful association. Self-esteem and the
sense of self-worth – the fulfilment of what it is to be human –
is most often bound
up with being accepted as socially useful.
[28] But the protection even of human
dignity – that most fundamental of constitutional values – is not
absolute and s 36
of the Bill of Rights recognises that it may
be limited in appropriate circumstances. It may be limited where the
limitation is of
general application and is 'reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom
taking into account all relevant factors'.
[29] If the protection of human dignity
were to be given its full effect in the present context –
permitting any person at all times
to undertake employment – it
would imply that any person might freely enter and remain in this
country so as to exercise that right.
But as pointed out by the
United States Supreme Court over a century ago in
Nishimura Ekiu v
The United States
:
7
‘
It
is an accepted maxim of international law, that every sovereign
nation has the power, as inherent in sovereignty, and essential
to
self-preservation, to forbid the entrance of foreigners within its
dominions, or to admit them only in such cases and upon such
conditions as it may see fit to prescribe.’
[30] It is for that reason, no doubt, that
the right to enter and to remain in the Republic, and the right to
choose a trade or occupation
or profession, are restricted to
citizens by ss 21 and 22 of the Bill of Rights. As pointed out in
Ex
Parte Chairperson of the Constitutional Assembly: In re Certification
of the Amended Text of the Constitution of the Republic of
South
Africa,
1996
1997 (2) SA 97
(CC) para 20, the restriction to
citizens of the right to choice of occupation is in accordance with
recognised international human
rights instruments. The Court went on
to say the following at para 21:
‘
This
distinction [between citizens and others] is in fact recognised in
the United States of America and also in Canada. There are
other
acknowledged and exemplary constitutional democracies where the right
to occupational choice is extended to citizens only,
or is not
guaranteed at all. One need do no more than refer to India, Ireland,
Italy and Germany. [Constitutional Principle] II,
as we made plain in
the [Certification Judgment], requires inclusion in a bill of rights
of ‘only those rights that have gained
a wide measure of
international acceptance as fundamental human rights’. The fact
that a right, in the terms contended for by the
objector, is not
recognised in the international and regional instruments referred to
and in a significant number of acknowledged
constitutional
democracies is fatal to any claim that its inclusion in the new South
African Bill of rights is demanded by [Constitutional
Principle] II’.
[31] Those considerations alone, in my
view, constitute reasonable and justifiable grounds for limiting the
protection that s 10
of the Bill of Rights accords to dignity so
as to exclude from its scope a right on the part of every applicant
for asylum to undertake
employment – a limitation that is implied
by
s 27(f)
of the
Refugees Act, and
that has been expressed in
the Standing Committee’s decision.
[32] But where employment is the only
reasonable means for the person’s support other considerations
arise. What is then in issue
is not merely a restriction upon the
person's capacity for self-fulfilment, but a restriction upon his or
her ability to live without
positive humiliation and degradation. For
it is not disputed that this country, unlike some other countries
that receive refugees,
offers no State support to applicants for
asylum.
8
While the second respondent offers some assistance as an act of
charity, that assistance is confined to applicants for asylum who
have young children, and even then the second respondent is able to
provide no more to each person than R160 per month for a period
of
three months. Thus a person who exercises his or her right to apply
to apply for asylum, but who is destitute, will have no alternative
but to turn to crime, or to begging, or to foraging. I do not suggest
that in such circumstances the State has an obligation to provide
employment – for that is not what is in issue in this appeal –
but only that the deprivation of the freedom to work assumes a
different dimension when it threatens positively to degrade rather
than merely to inhibit the realisation of the potential for
self-fulfilment.
[33] In my view there is no justification
for limiting beyond that degree the protection that is afforded by
s 10.
As pointed out in
Makwanyane
,
supra,
para
102, it is for the party relying upon the limitation to satisfy a
court that the limitation is justified and not for the party
challenging it to show that it was not justified.
9
The appellants made little attempt to show why such a limitation
would be justified. It was alleged that the prohibition on employment
is consistent with Article 17 of the 1951 United Nations Convention
Relating to the Status of Refugees and its 1967 Protocol but
those
instruments are neutral on this issue. There was some suggestion that
the rights that are accorded to applicants for asylum
are abused by
persons who are not genuine refugees but that provides no reason for
limiting the rights of those who are genuine.
There was also a
suggestion that to permit an applicant for asylum to undertake
employment would deprive citizens of that opportunity
but there is no
reason to believe that that will always be so. No doubt these are
matters that might properly be taken into account
in determining
whether a particular applicant for asylum should or should not be
permitted to take up employment or to study but
I do not think they
provide grounds for applying a general prohibition. For a general
prohibition will inevitably include amongst
those that it affects
applicants for asylum who have no reasonable means of support other
than through employment. A prohibition
against employment in those
circumstances is a material invasion of human dignity that is not
justifiable in terms of
s 36.
[34] That must necessarily mean that in
exercising the powers and duties conferred upon it by
s 11(h)
the Standing Committee must take account of the circumstances of the
applicant, whether on a case by case basis or by formulating
guidelines to be applied by Refugee Reception Officers when issuing
permits in particular cases. Provided that a Refugee Reception
Officer acts within closely and clearly defined guidelines, and the
Standing Committee retains its powers of oversight, I do not
think
the delegation to him or her of the power to assess what conditions
should be imposed in particular cases would be unlawful.
As pointed
out by Botha JA in
Attorney-General, OFS v Cyril Anderson
Investments (Pty) Ltd
1965 (4) SA 628
(A) at 639:
‘
It is not every delegation of delegated powers that
is hit by the maxim [
delegatus delegare non potest
]
,
but only such delegations as are not, either expressly or by
necessary implication, authorised by the delegated powers.’
10
[35] There is one further consideration to
be borne in mind. At the time that is relevant to this appeal the
Aliens Control Act No
96 of 1991 was still in existence. It has since
been repealed and replaced by the
Immigration Act 13 of 2002
.
11
Although an applicant for asylum is permitted to be in this country
by the
Refugees Act his
or her presence might often be in
contravention of the Aliens Control Act (and now in contravention of
the
Immigration Act) with
the result that the prohibitions in
s 32
of that Act (and the prohibitions in
s 38
of the
Immigration
Act) would
ordinarily be applicable. That construction would
effectively negate the express power conferred upon the Standing
Committee by the
Refugees Act to
permit applicants for asylum to
enter into employment or to study and that could not have been
intended. It must necessarily be
implied in
s 22
of the
Refugees Act
that
a permit granting an applicant the right to work or to study
confers those rights upon the permit-holder, and where applicable his
or her dependants, notwithstanding the provisions of the Aliens
Control Act or the
Immigration Act.
[36
] In my view the Standing Committee's
general prohibition against study is also unlawful. The freedom to
study is also inherent in
human dignity for without it a person is
deprived of the potential for human fulfilment. Furthermore, it is
expressly protected by
s 29(1)
of the Bill of Rights, which
guarantees everyone the right to a basic education, including adult
basic education, and to further
education. (We are not concerned in
this case with whether the State is obliged to provide educational
opportunities to applicants
for asylum but only with whether they may
be deprived of the freedom to receive education that is available).
For reasons that I
have already advanced that right, too, cannot be
absolute, and is capable of being limited in appropriate
circumstances, for I reiterate
that the State cannot be obliged to
permit any person to enter this country, and then to remain, in order
that he or she might exercise
that right. But where, for example, the
person concerned is a child who is lawfully in this country to seek
asylum (there might be
other circumstances as well) I can see no
justification for limiting that right so as to deprive him or her of
the opportunity for
human fulfilment at a critical period, nor was
any suggested by the appellants. A general prohibition that does not
allow for study
to be permitted in appropriate circumstances is in my
view unlawful, and I reiterate what has been said in paragraph 34.
[37] It remains to consider whether the
court
a quo
was justified in directing the appellants to
permit the first respondent and her son to take up employment and to
study respectively.
I have pointed out that an applicant for asylum
is not ordinarily entitled to take up employment or to study pending
the outcome
of his or her application, but that there will be
circumstances in which it would be unlawful to prohibit it.
Section
11(h)
confers upon the Standing Committee the power and the duty to
determine in any particular case whether that should be permitted,
and it has not yet applied its mind to whether it ought to be
permitted in the present case. I do not think it is for a court to
usurp that function. There is no reason to believe that the outcome
is a foregone conclusion, nor that the Standing Committee is
not able
properly to exercise its powers (
Johannesburg City Council v The
Administrator of the Transvaal
1969 (2) SA 72
(T);
Traube and
Others v Administrator, Transvaal, and Others
1989 (1) SA 397
(W)). The proper order is to direct the Standing Committee to
exercise its powers in the present case, rather than to usurp its
functions.
(We were informed from the Bar that the first appellant’s
application for asylum was refused but that an appeal against that
refusal
has yet to be determined.)
[38] For those reasons the appeal can
succeed only to the extent that the second part of the order made by
the court
a quo
falls to be set aside. However that was not
the main thrust of this appeal. The respondents have been
substantially successful and
are entitled to the costs of the appeal.
[39] The following orders are made:
1. The appeal succeeds to the extent that
paragraph 2 of the order made by the court
a quo
is set aside
and the following is substituted:
‘
The Standing Committee for Refugee
Affairs is directed to consider and determine whether the first
applicant and her son respectively
should be permitted to undertake
employment and to study pending the outcome of the first respondent’s
application for asylum,
and to cause the appropriate condition to be
endorsed upon the permit issued to her in terms of
s 22
of the
Refugees Act.’
2. The appellants are ordered to pay the costs of the
appeal.
________________
NUGENT JA
HOWIE P)
NAVSA JA)
MTHIYANE JA) CONCUR
HEHER JA)
1
The Aliens Control Act 96 of 1991 was repealed by
s 54
of the
Immigration Act 13 of 2002
.
Section 54
was brought into operation
on 12 March 2003 by Proclamation R13, 2003 published in Regulation
Gazette 7589 Government Gazette 24951
dated 20 February 2003.
2
In terms of the
Refugees Act the
appeal lies to the Refugee Appeal
Board established under
s 12
of that Act. Amendments made to
that Act by the Immigration Act No 13 of 2003 have the effect of
abolishing that Board and allowing
an appeal instead to the
Immigration Court established in terms of s 37 of that Act.
Those amendments have yet to come into
operation.
3
Under Government Notice R 366 in Government Gazette 21075 of 6 April
2000.
4
The case was decided under the interim Constitution but the remarks
have equal validity under the new Constitution
5
Chapter 2 of the Constitution of the Republic of South Africa,
1996.
6
The
case was decided under the interim Constitution but the passages
cited have equal relevance to the present Constitution.
7
[1892] USSC 26
;
142 US 651
at 659. The passage as it is cited in Tribe
American
Constitutional Law
2
nd
ed at 358 was cited with
approval in the Certification judgment referred to in para 30, at
para 21 fn 31.
8
In the United Kingdom s 95 of the Immigration and Asylum Act
1999 authorises the Secretary of State to provide material support
for asylum seekers. It was noted in
R (on the application of Q
and Others) v Secretary of State for the Home Department
[2003] EWCA Civ 364
;
[2003]
2 All ER 905
(CA) that that power is exercised at an annual cost of
£1 billion.
9
At para [102]. See too
In National Coalition for Gay &
Lesbian Equality and Another v Minister of Justice and Others
1999 (1) SA 6
(CC); Stuart Woolman in Chaskalson
et al
Constitutional Law of South Africa 12.3; Halton Cheadle in South
African Constitutional Law: The Bill of Rights para 30.5.
10
See further: Lawrence Baxter
Administrative Law
432-442
11
See footnote 1.