Brief Summary

Constitutional Law — Right to dignity — Declaration of invalidity of sections of the Aliens Control Act — Applicants, spouses in marriages between South Africans and foreign nationals without immigration permits, challenged provisions impeding work permit applications — High Court found sections unjustifiably limited the right to human dignity — Constitutional Court confirmed declarations of invalidity of sections 26(2)(a) and 26(3)(b) of the Act, suspending the declarations for 12 months to allow Parliament to amend the legislation, while directing the acceptance of work permit applications from foreign spouses within South Africa during the suspension period.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings were confirmation proceedings in the Constitutional Court in terms of section 172(2)(a) of the Constitution of the Republic of South Africa, 1996, following an order of constitutional invalidity made by the Cape of Good Hope High Court. The applicants were eight individuals, being the spouses in four marriages validly contracted under South African law, where each couple comprised a South African citizen or permanent resident and a foreign national spouse who did not hold an immigration permit. The respondents were the Minister of Home Affairs and the Director-General, Department of Home Affairs.

In the High Court, van Heerden J declared two provisions of the Aliens Control Act 96 of 1991 unconstitutional, and also declared certain regulatory provisions invalid and granted consequential interim relief pending legislative correction. Because the invalidity findings concerned provisions of an Act of Parliament, those declarations required confirmation by the Constitutional Court to have force. The regulations-related declarations did not require confirmation and were not in issue before the Constitutional Court.

The general subject-matter of the dispute concerned the immigration and work-permit regime applicable to foreign spouses of South Africans, and whether the statutory requirements governing the making and adjudication of work-permit applications unjustifiably limited the constitutional right to human dignity (including the dignity interests bound up with marital and family life).

2. Material Facts

The applicants were spouses in four marriages, each marriage comprising a South African spouse (either a citizen or a permanent resident) and a foreign national spouse who did not have an immigration permit. The foreign spouses wished to work in South Africa, but their ability to do so was constrained by the requirements of the Aliens Control Act 96 of 1991 and associated regulations.

An important statutory feature relevant to the first declaration of invalidity was section 26(2)(a) of the Aliens Control Act, read with regulation 16(1) of the Aliens Control Regulations. The combined effect of these provisions was that an application for a work permit had to be made while the applicant was outside South Africa, and the applicant was not permitted to enter South Africa until the permit had been issued. In the High Court, the applicants contended that this requirement seriously disrupted family life by forcing separation or preventing spouses from living together in South Africa while a work-permit application was processed.

A second statutory feature relevant to the second declaration of invalidity was section 26(3)(b), which tied the issuing of work permits for spouses of South Africans to labour-market considerations incorporated by reference to section 25(4)(a)(iv). The effect relied upon was that work permits could be withheld from foreign spouses if they pursued (or were likely to pursue) occupations where there was, in the opinion of the relevant authorities, a sufficient number of persons available in South Africa to meet local requirements. The applicants’ case in the High Court was that this could prevent foreign spouses from working unless they had scarce skills, thereby undermining the ability of spouses to support one another, with consequences for human dignity.

Before the Constitutional Court, the judgment records that van Heerden J had dealt comprehensively with the facts and that the correctness of the factual basis on which she proceeded was conceded. The Constitutional Court treated the matter as one where the relevant facts material to the constitutional question were not in dispute.

Procedurally, although the respondents initially opposed the High Court applications, after the Constitutional Court’s decision in Dawood, Shalabi and Thomas v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC), affidavits were filed acknowledging that the impugned provisions had an unjustifiable limiting effect on the applicants’ section 10 dignity rights. In the Constitutional Court hearing, counsel for the Minister supported confirmation, subject to a qualification related to the 30-day finalisation period for applications ordered as interim relief.

3. Legal Issues

The central legal questions before the Constitutional Court were whether section 26(2)(a) and section 26(3)(b) of the Aliens Control Act 96 of 1991 were inconsistent with the Constitution because they unjustifiably limited the right to human dignity in section 10 as it related to the lived reality of marriage, family life, and spousal support in circumstances where one spouse was a foreign national.

A further issue concerned the appropriate form of confirmation and remedial orders, specifically whether and how the High Court’s interim directions should operate during the period of suspension of invalidity, including the practical constraint raised about compliance with the requirement to finalise applications within 30 working days.

The dispute was predominantly one of constitutional law and the application of established constitutional principle to undisputed facts, rather than a dispute of primary fact. It also involved an element of remedial discretion, because the Court was required to consider the confirmation of suspended declarations and the shaping of interim relief to avoid uncertainty or unfairness.

4. Court’s Reasoning

The Constitutional Court located the dispute within the constitutional framework that requires statutory provisions limiting fundamental rights to be constitutionally justified, and it accepted (as the High Court had) that the relevant right implicated on these facts was the right to human dignity in section 10 of the Constitution of the Republic of South Africa, 1996. The judgment linked dignity to the ability of spouses to live together, honour marital obligations, and provide mutual support, in circumstances where immigration controls might otherwise compel separation or prevent lawful work.

In approaching the specific statutory provisions, the Court noted that van Heerden J had analysed the relevant provisions and applied the principles laid down in Dawood, Shalabi and Thomas v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) and other cited Constitutional Court authorities. The Constitutional Court considered it unnecessary to restate those principles or to rework their application to the facts, particularly because the factual basis was conceded and because the High Court’s approach was aligned with the applicable Constitutional Court jurisprudence.

On section 26(2)(a), the Court accepted the conclusion that forcing foreign spouses to apply for work permits from outside South Africa, and barring entry until issuance, significantly impaired the spouses’ ability to maintain their family life together in South Africa and thereby unjustifiably limited dignity. On section 26(3)(b) (read with section 25(4)(a)(iv)), the Court accepted the conclusion that restricting spousal work permits through a “sufficient number of persons available” labour-market criterion could prevent foreign spouses from working even where family circumstances required employment, undermining spousal support and similarly limiting dignity in a manner not constitutionally justified on the record before the Court.

The Court addressed a remedial refinement raised during argument. Counsel for the Minister supported confirmation but sought “latitude” to avoid unfairness where it was impossible to finalise applications within the 30-day timeframe ordered by the High Court. Counsel for the applicants agreed. The Court accepted the need to avoid uncertainty and unfairness and amended the relevant portion of the order to allow a longer period where there was good cause.

The Court also amended the order to clarify that refusals of applications made under section 26(1)(b) prior to 8 February 2001 would not be rendered unlawful by the subsequent declarations of invalidity. This clarification operated as a temporal limitation on the consequences of invalidity to avoid retrospective unlawfulness for past refusals.

On costs, the Court considered that confirmation proceedings were required and that argument was helpful beyond only the most straightforward cases. It further considered that although non-opposition might have affected costs if stated earlier, the Minister withdrew opposition only at a late stage, by which time the applicants had already engaged two counsel (as they had in the High Court). The Court held it fair and just to award costs to the applicants, including the costs of two counsel.

5. Outcome and Relief

The Constitutional Court confirmed, in amended form, the High Court’s declarations that section 26(2)(a) and section 26(3)(b) of the Aliens Control Act 96 of 1991 were inconsistent with the Constitution and invalid. In each case, the declaration of invalidity was suspended for 12 months to allow Parliament an opportunity to correct the constitutional defects.

Pending legislative correction (or expiry of the suspension period), the Court confirmed interim relief requiring the Director-General to accept in-country applications for work permits by qualifying foreign spouses notwithstanding section 26(2)(a) and regulation 16(1), and limiting the grounds on which work permits (and extensions) could be refused to good cause, expressly excluding reliance on the labour-market sufficiency factor as a determinative consideration for “good cause” in the interim framework.

The Court amended the High Court’s timing requirement so that applications had to be finalised within 30 working days, unless there was good cause for a longer period to be taken. The Court further ordered that the declarations of invalidity would not render unlawful refusals made prior to 8 February 2001 of applications made under section 26(1)(b).

The Court ordered the first respondent (the Minister of Home Affairs) to pay the applicants’ costs of the confirmation proceedings, including costs attendant upon the employment of two counsel.

Cases Cited

Dawood, Shalabi and Thomas v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC).

Makinana and Others v The Minister of Home Affairs and Another; Keelty and Another v The Minister of Home Affairs and Another (Cape of Good Hope) Case No 339/2000, 8 February 2001, unreported.

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 10.

Constitution of the Republic of South Africa, 1996, section 172(2)(a).

Aliens Control Act 96 of 1991, section 1.

Aliens Control Act 96 of 1991, section 25(4)(a)(i)–(iv).

Aliens Control Act 96 of 1991, section 26(1)(b).

Aliens Control Act 96 of 1991, section 26(2)(a).

Aliens Control Act 96 of 1991, section 26(3)(a).

Aliens Control Act 96 of 1991, section 26(3)(b).

Aliens Control Act 96 of 1991, section 26(5).

Aliens Control Act 96 of 1991, section 26(6).

Aliens Control Act 96 of 1991, section 56.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that section 26(2)(a) and section 26(3)(b) of the Aliens Control Act 96 of 1991 unjustifiably limited the right to human dignity in section 10 of the Constitution of the Republic of South Africa, 1996 as it applied to South Africans (citizens or permanent residents) married to foreign national spouses and to those foreign spouses.

The Court confirmed the High Court’s declarations of invalidity subject to amendments clarifying (i) that the 30 working day period for finalising applications could be exceeded where good cause existed, and (ii) that refusals of relevant applications made before 8 February 2001 would not be rendered unlawful.

The Court held that it was fair and just for the Minister of Home Affairs to pay the applicants’ costs in the confirmation proceedings, including the costs of two counsel, given the late withdrawal of opposition.

LEGAL PRINCIPLES

The judgment applied the principle that statutory provisions governing immigration administration must be consistent with the Constitution, and that where such provisions limit constitutionally protected interests associated with marital and family life, they may implicate and limit the right to human dignity protected by section 10 of the Constitution of the Republic of South Africa, 1996.

The judgment applied the principle, as drawn from the court’s prior jurisprudence (notably Dawood, Shalabi and Thomas v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC)), that immigration controls and administrative requirements which materially disrupt cohabitation and spousal support may constitute a limitation of dignity that requires constitutional justification; where such justification is absent on the accepted facts, invalidity may follow.

The judgment further reflected remedial principles under section 172(2)(a), including that declarations of invalidity concerning Acts of Parliament require confirmation by the Constitutional Court, and that a court may suspend a declaration of invalidity to allow Parliament time to cure the defect, while crafting interim measures to regulate conduct and prevent ongoing constitutional harm, subject to practical fairness through mechanisms such as “good cause” flexibility and temporal limitation on retrospective consequences.

Booysen and Others v Minister of Home Affairs and Another (CCT 8/01) [2001] ZACC 20; 2001 (4) SA 485 (CC); 2001 (7) BCLR 645 (CC) (4 June 2001)