Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838 ; 2003 (5) SA 281 (CC) (27 June 2003)

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Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838 ; 2003 (5) SA 281 (CC) (27 June 2003)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 15/03
MINISTER
OF HOME
AFFAIRS
Applicant
versus
EISENBERG
&
ASSOCIATES
Respondent
In re:
EISENBERG
&
ASSOCIATES
Applicant
and
MINISTER
OF HOME
AFFAIRS
First Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Second Respondent
SPEAKER OF
THE NATIONAL ASSEMBLY
Third Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL OF
Fourth Respondent
PROVINCES
DEPUTY
PRESIDENT OF THE REPUBLIC OF SOUTH
Fifth Respondent
AFRICA
Heard
on         :
20 May 2003
Decided
on     :
27 June 2003
JUDGMENT
CHASKALSON
CJ:
Introduction
[1]
On 25 February 2003, the respondent launched an urgent
application in the Cape High Court asking for an order declaring the
immigration
regulations made on 21 February 2003 in terms of the
Immigration Act
[1]
(“the Act”) to be unlawful, inconsistent with the Constitution
and invalid.
[2]
On 11 March 2003, the High Court granted the order sought by
the respondent. The High Court refused to suspend the order of
invalidity.
It held that the Aliens Control Regulations made
under the Aliens Control Act
[2]
would operate in conjunction with the Immigration Act and would fill
the gap adequately until regulations were made lawfully in terms
of
the Immigration Act.  The reasons for the order were provided
later in a judgment delivered on 27 March 2003.
[3]
[3]
The Minister applied for a certificate in terms of rule 18 of
the rules of the Constitutional Court and at the same time for
conditional
leave to appeal against the order made to the Supreme
Court of Appeal.  The High Court issued a negative certificate,
stating
that there was no reasonable prospect that this Court would
reverse or materially alter the orders made by the High Court and
that
it was therefore not in the interests of justice for an appeal
to be brought directly this Court.  It also refused leave to
appeal to the Supreme Court of Appeal.
[4]
An application for leave to appeal to this Court was lodged on
9 April 2003.  The application was set down for hearing on 20
May 2003 and the parties were directed that the written argument must
be sufficient to enable the Court to dispose of the application
without having to hear further argument, should leave to appeal be
granted.
The issues in the High Court
[5]
The substantive relief claimed by the respondent in its
notice of motion in the High Court was in the following terms:
(a)
Declaring the Immigration Regulations made by the Minister on 21
February 2003 published in
Government Gazette No. 24952 (Notice 487
of 2003) to be unlawful and inconsistent with the Constitution of the
Republic of South
Africa, Act 108 of 1996 and invalid.
(b)
Declaring that before the Minister is empowered to make immigration
regulations he is required
to comply with the provisions of
section 7
of the
Immigration Act 13 of 2002
.
[6]
During the course of the proceedings in the High Court, the
respondent sought to amend the relief claimed by him to include an
order
invalidating in part the Proclamation made by the Deputy
President which brought the Act into operation in stages.
[4]
The High Court refused to make such an order, holding that the issue
had not been properly raised in the papers and that in
any event,
such relief was not justified in the circumstances of the case.
No appeal has been noted against that decision and
the matter must
therefore be dealt with on the basis that the Proclamation is valid
and the various provisions of the Act came into
force on the dates
determined by the Deputy President.
[7]
Section 7 of the Act empowers the Minister to make regulations
and deals in some detail with the procedures to be followed when this
is done.  The procedures involve a consultative process in which
the public and the Immigration Advisory Board (“the Board”)
have
an important role.  Section 52 provides for regulations to be
made before the Board is constituted.
[8]
The principal issue between the parties was whether the public
consultative process required by section 7 has any application to
regulations
made under section 52.  The High Court held that it
did and that the immigration regulations were invalid because this
procedure
had not been followed.  It made an order in terms of
the two prayers of the notice of motion referred to in paragraph [5]
above.
The legislative framework
[9]
It will be convenient to refer first to sections 7 and 52 and
certain related provisions of the Act relevant to the interpretation
of these two sections.  Other issues raised in the High Court
are dealt with later in this judgment.
[10]
Section 7 provides:
“
7
Regulation making
(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−
(a)
publish and table in Parliament his or her intention of adopting
regulations specifying
their subject matter and soliciting public
comments during a period not shorter than 21 calendar days;
(b)
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
(c)
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−
(a)
reconsider any intended regulations prior to their promulgation; or
(b)
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.”
[11]
This section must be read with the definitions in section 1
which include the following:
“‘
Board’ means the
Immigration Advisory Board contemplated in section 4 of this Act;
. . .
‘
prescribed’ means provided
for by regulation, the verb ‘to prescribe’ has a corresponding
meaning and ‘prescribed from time
to time’ refers to section
7(2);
. . .
‘
publish’ means publish by
notice in the Government Gazette and, to the extent possible and
feasible under the circumstances, convey
by mail or email to parties
or stakeholders who have requested their inclusion or have been
included in mailing lists to be maintained
by the Department in
respect of subject matters in respect of which public input is called
for by this Act, prescribed, advisable
and expedient;
‘
regulations’ means general
rules adopted by the Minister after consultation with the Board in
terms of this
Act and published;”.
[12]
Read in the light of these definitions the regulations
referred to in section 7 are regulations made after consultation with
the Board.
The power vested in the Minister by this section is
a power to make such regulations.  In so doing the Minister is
obliged
to follow the consultative process set out in section 7 and
to publish the definitions in the manner required by the definition
of
“publish”.
[13]
Section 7 distinguishes between regulations that the Act
requires to be prescribed from time to time, and other “regulations
called
for, or conducive to, the implementation of this Act”.
In the case of regulations that are not required to be prescribed
from time to time, the Minister must adopt the following procedure:
(a)
Give notice in the Government Gazette and by e-mail or mail to
persons on a mailing list to
be maintained by the Department of Home
Affairs of the intention to make such regulations.
[5]
(b)
Consider comments received following the publication of the notice of
intention to make the
regulations.
(c)
Prepare draft regulations.  Once again notice must be published
in the gazette and circulated
to people on the mailing list.
The notice must solicit further comment and allow at least twenty one
days for this purpose.
[6]
(d)
Adopt final regulations after consultation with the Board.  The
regulations must be published
by notice in the gazette and by e-mail
to persons on the mailing list, together with a summary of the
comments that have not been
accommodated and the reasons for their
rejection.
[7]
(e)
The regulations must be consistent with the Act and shall not
disregard the advice of the
board and public comments “in an
arbitrary or capricious manner”.
[8]
(f)
The final regulations must be tabled in Parliament within 30 days of
their promulgation.
[9]
[14]
Where regulations are required by the Act the procedures set
out in paragraph [13] (a) and (b) above are not applicable.  The
process starts with the preparation of draft regulations which is
done after consultation with the Board.  The procedures set
out
in paragraph [13] (c), (d) (e) and (f) above are, however,
applicable.
[10]
[15]
These protracted procedures deal with regulations made in
terms of section 7.  I have already drawn attention to the fact
that
the regulations which the Minister is empowered to make in terms
of this section are defined in section 1 as being regulations made
after consultation with the Board.  Section 7 contemplates that
the Board has been constituted and does not deal with the making
of
regulations before that has happened.  This is dealt with in
section 52 to which the special definitions in section 51 are
applicable.
[16]
Section 52 is in the last chapter of the Act which bears the
heading “Transitional Provisions.”  Section 51, which is the
first section of this chapter, makes provision for the special
definitions to be applicable to the interpretation of sections 52
and
53.  Under the heading “transitional definitions” this
section provides:
“
In respect of sections 52 and
53 the following additional or different definitions shall apply,
unless the context requires otherwise:
(i)
‘prescribe’ means to provide through regulations and ‘prescribed’
has
a correspondent meaning;
(ii)
‘previous Act’ means the Aliens Control Act, 1991 (Act 96 of
1991);
(iii)
‘published’ means published in the Government Gazette; and
(iv)
‘regulations’ means both general and specific rules adopted by
the Minister and published.”
[17]
The provisions of sections 52 and 53 are as follows:
“
52.
Functions of Department and Board
(1)
Until the Board is duly constituted and operational, any regulation
required in terms
of this Act shall be prescribed.
. . .
53.
Existing Permits
(1)
Any permanent residence permit validly issued in terms of the
previous Act shall be
deemed to have been issued in terms of, and in
compliance with, this Act.
(2)
Any permit issued in terms of the previous Act for a determined
period shall continue
in force and effect in accordance with the
terms and conditions under which it was issued, but may only be
renewed in terms of this
Act, provided that-
(i)   the Department
may waive the requirement to submit a new application , and
(ii)  for good cause the
Department may authorise a permit to be renewed in terms of the
previous Act.
(3)
Any exemptions for an undetermined period granted in terms of
section 28(2) of the previous Act shall be deemed a permanent
residence
permit for the purposes of
this
Act, and any
exemption granted for a determined period shall continue in force and
effect in accordance with the terms and conditions
under which it was
issued.
(4)
Permits issued under section 41 of the previous Act shall continue in
force and effect
in accordance with the terms and conditions under
which they were issued, but may not be renewed.
The coming into force of the
Act
[18]
The Act was promulgated on 31 May 2002.  At that time
immigration control was regulated by the Aliens Control Act.
The
Act, which repeals the Aliens Control Act, was to come into force
“on a date determined by the President by Proclamation in the
Government Gazette”.
[11]
Once that happened immigration control would be regulated by the Act
and save for certain of its regulations that might continue
to be
relevant, the provisions of the Aliens Control Act would cease to
have effect.
[12]
[19]
Almost a year after the Act had been promulgated the process
of bringing it into operation was commenced.  This was done in
stages.
[13]
On 19 February 2003 a notice was published in the Gazette
dealing with how this was to happen.
[14]
The Proclamation was made by the Deputy President who was then acting
as President because of the absence of the President
from the
Republic.
[15]
The Proclamation provided that sections 7 and 52 would come into
force on 20 February 2003; section 4, which establishes the
Board,
would come into force on 26 February 2003, and the remainder of the
Act, save for section 37, would come into force on 12
March
2003.
[16]
Section 37 makes provision for the establishment of immigration
courts and is not relevant to the issues raised in this appeal.
[20]
The regulations that are in dispute in this appeal were
promulgated on 21 February 2003.  That was the day after
sections 7 and
52 of the Act had come into force, five days before
section 4, establishing the Board, was brought into force, and
nineteen days
before the rest of the Act came into force.  The
timing of these steps seems to have been deliberate and to have had
the purpose
of ensuring that the regulations were promulgated before
the Board had been established.
The proceedings in the High
Court
[21]
The matter was dealt with in the High Court on the basis that
the Proclamation was valid, and that the various sections of the Act
had come into force on the dates fixed by the Deputy President.
[22]
The notice of 21 February 2003 in terms of which the
regulations were promulgated stated that they had been made by the
Minister “in
terms of section 52 read with section 51” of the
Act.  At that time section 51 had not yet formally been brought
into force
and this was one of the factors relied on by the
respondent in the High Court in challenging the validity of the
regulations.
[23]
In addition, the respondent contended that the Minister had
failed to comply with the procedures prescribed by section 7 of the
Act.
The Minister disputed that section 7 was applicable to
regulations made in terms of section 52, and contended that he was
therefore
not under any obligation to follow such procedures.
[24]
The Minister also challenged the respondent’s standing to
bring the application.  He contended that the respondent was not
affected by any of the provisions of the regulations and had no
interest in having them set aside.
The judgment of the High
Court
[25]
The High Court held that the respondent had standing to bring
the application.  It is a firm of attorneys whose practice is
mainly
concerned with immigration law.  It would have been
entitled to receive notice and to comment on the regulations if the
section
7 procedures were applicable and had been followed.  The
issues raised by it were not academic or hypothetical.  If it
had been denied standing there would have been no way in which anyone
could have brought these issues before the Court.  In
the
circumstances, so the Court held, the respondent was entitled to
bring the application both in its own interest and in the public
interest.
[17]
[26]
On the merits of the dispute the Court held that the only
difference between regulations made under section 7(1) and section
52(1)
was that the Board had a role in the former but not the
latter.  It rejected the argument that the provisions of section
7 were
not applicable to regulations made under section 52, holding
that Parliament could not have contemplated that the Minister would
have unfettered power to make regulations pending the coming into
operation of the Board.
[18]
[27]
Despite being requested to do so by the Minister, the High
Court refused to exercise its powers under section 172(1)(b)(ii)
[19]
of the Constitution to suspend the order of invalidity, holding that
the regulations under the old Act, kept in force by section
52(2) of
the Act, would fill the gap adequately until new regulations were
made lawfully.
[20]
Standing
[28]
In their argument to this Court counsel for the Minister
accepted that the respondent has standing to challenge the
constitutionality
of the regulations.  I agree.  I do so
because the constitutional challenge is based on the failure by the
respondent to
comply with the notice and comment provisions of
section 7 of the Act.  The crisp issue is whether the section 7
procedures
were applicable to the regulations made by the Minister.
The respondent would have had a right to comment on the draft
regulations
if section 7 were applicable.  It had an interest as
a member of the public in asserting the right that it claimed to have
and
had standing to raise that issue in its own interests.  I
base my decision on that ground.  It is not necessary therefore
to say anything about the public interest standing asserted by the
respondent.
The principal issues in the
appeal
[29]
The Minister contended that section 7 is designed to deal with
the making of regulations after the Board is operational and that
section
52 is designed to deal with the making of regulations before
the Board is operational.  They are separate and distinct
provisions
and should not be conflated.
[30]
In developing this argument, counsel for the Minister
contended that section 52 empowers the Minister to make regulations
during the
“transition”.  It must be read with the special
definitions in section 51 that are applicable to its provisions.
Thus
read the section contemplates that the initial regulatory regime
will be established by the Minister without consultation and without
any obligation to table draft regulations in Parliament or to give
notice to persons on the departmental mailing list.  This
flows
from the specific wording of the sections, and the fact that the
procedure involving notice and consultation required by section
7 and
the section 1 definitions, are not repeated in sections 51 and 52.
[31]
The respondent’s argument proceeded along the following
lines.  Section 7(1) vests the power to make regulations in the
Minister
and prescribes the procedure to be followed “in making
regulations in terms of this Act”.  This prima facie applies
to regulations
made under section 52 as well as regulations made
under section 7.
[32]
The respondent contended that the considerations that call for
notice to be given to Parliament and for the public to be consulted
on draft regulations prior to the making of final regulations are
equally applicable to regulations made before the Board is
constituted.
In fact there may even be greater need for such
consultation when the Board is not in existence than would be the
case after it is
operational.
[33]
The respondent further contended that if the Minister’s
construction of the Act is adopted he would be able to make
comprehensive
regulations under section 52.  There is no
provision of the Act that would require such regulations to be
reviewed or replaced
after the Board is constituted and operational
which means that section 52 regulations could remain in place
indefinitely.  The
basic immigration regime will then have been
established by the Minister without consultation, and the elaborate
provisions for consultation
made in section 7 will have application
only to amendments to the regulations.
The interpretation of section
52
[34]
Section 52 is in a chapter that deals with transitional
provisions.  It makes provision for regulations to be made prior
to the
Board being in a position to perform the functions assigned to
it under the Act.  Once the Board is constituted and becomes
operational section 52 ceases to be applicable.  In terms of
section 52(3) the Board must be convened within 90 days of the
Act
coming into force.  Section 52(1) provides that:
“
Until the Board is duly
constituted and operational, any regulation required in terms of this
Act shall be prescribed.”
If the section is construed in
accordance with the special definitions of “prescribe”,
“published” and “regulations” that
are applicable, it would
read as follows:
Until the Board is duly
constituted and operational any regulation required in terms of this
Act shall be prescribed through general
and specific rules adopted by
the Minister and published in the Government Gazette.
Read thus, the section does not
require consultation with the Board or compliance with the extensive
notice provisions demanded by
section 7 read with section 1.
[35]
This is consistent with section 7 and the definitions
applicable to it.  If the definition of “regulations” in
section 1
is taken into account in construing section 7, the power
vested in the Minister by this section is a power to make those
regulations
that are adopted after consultation with the Board.
The Minister is not empowered by this section to make regulations
before
the Board is constituted.  It is precisely for this
reason that the transitional provisions of section 52 are necessary.
[36]
The decision of the High Court, and the respondent’s
argument in this Court, requires the section 51 definitions, and not
the section
1 definitions, to be applied to section 7 and the rest of
the Act during the pre-board period.  In effect section 51 would
then
have to be read as if it said:
Until the Board is duly
constituted and operational the definitions in section 51 shall apply
in place of the corresponding definitions
in section 1.
But this is not what section 51
says.  It makes provision for special definitions for the
purposes only of sections 52 and 53,
and is not reasonably capable of
being construed in any other way.
[37]
It is also not possible to read into section 7 a stipulation
to the effect that until the Board is constituted the provisions
pertaining
to the Board’s role in the regulation making process
shall have no application.  That would not only be contrary to
the clear
language of the section read with the definition of
regulations applicable to it, but would also be inconsistent with
section 52
which deals specifically with how regulations are to be
made during the pre-Board period.  What is more, on that
construction,
the whole of section 51 and section 52(1) would be
unnecessary.
[38]
In its judgment the High Court suggests, incorrectly, that
absent a process of public comment, the Minister would have had
“unfettered
power” to make interim regulations of whatever
nature.  In such circumstances members of the public
“
might
simply be confronted with arbitrary, capricious or even oppressive
regulations as a
fait acompli
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.”
[21]
[39]
The Minister’s powers are not unfettered.  The making
of regulations is an exercise of public power and as such is subject
to constitutional control.
[22]
The proposition asserted by the High Court in the passage that
I have cited is not only inconsistent with the Constitution,
but is
also inconsistent with the provisions of section 52 which, read with
the section 51 definitions, empowers the Minister only
to adopt
regulations “required in terms of the Act”.  I would add
that no suggestion has been made that any of the regulations
in the
present case are oppressive, arbitrary, capricious or inconsistent
with the rights protected by the Constitution.  If
such an
assertion had been made and established the regulations concerned
would have been struck down on those grounds.  Indeed
one of the
reasons for passing the
Immigration Act seems
to have been to adopt a
system of immigration control more consistent with the Constitution
than that which previously existed and
had been the subject of
several successful court challenges.
[23]
[40]
I appreciate, however, the force of the respondent’s
argument that on the construction contended for by the Minister he
was able
to establish the initial regulatory regime without
consultation with the Board and without the public participation
contemplated
by the Act for the making of regulations.
[41]
Counsel for the Minister sought to counter this argument by
contending that it is implicit in the Act that regulations made under
section 52 will be of an interim nature and will be replaced by
“permanent” regulations once that is possible.  They
contended
that the use of the section 52 power for any other purpose
would be an abuse of power and invalid.
[42]
That question need not be decided now and may never arise.  In
his answering affidavit the Minister describes the regulations
as the
bare minimum necessary to bring into operation the new system of
immigration control contemplated by the Act.  He says
that
regulations running to hundreds of pages are necessary and these
regulations will be made in terms of section 7.  In his
application to this Court for leave to appeal the Minister says that
the regulations that are in dispute are of a temporary nature
and
that he has already started the process of making new regulations in
terms of section 7.  He attached to his application
a notice in
terms of section 7(1) calling for comment on his proposal.  That
may be so.  I am not persuaded, however, that
the contention
that regulations made in terms of section 52 are no more than interim
regulations is necessarily correct.  The
Act provides that
section 52 has only a limited life.  But it does not provide
that regulations made under section 52 are to
endure only until new
regulations can be made under section 7.
[43]
To some extent the criticism of the construction asserted by
the Minister is met by the fact that the regulations are subject to
review
by the Board and recommendations it might make once it becomes
operational.  The Board had to be convened within 90 days of
the
Act coming into force.  It is an expert body which has an
important consultative role under the Act.  Members of the
public can bring any concerns they may have with the Minister’s
regulations to the attention of the Board.  One of its first
tasks will be to consider the regulations put in place by the
Minister during the interim period.  If the Board has concerns
relating to the regulations it will be under a duty to advise the
Minister to amend the regulations and the Minister would be obliged
to give serious consideration to such advice.  Whilst this is
not equivalent to the participatory process required for the making
of section 7 regulations, it allows for the regulations to be brought
under scrutiny once the Board is operational.  The Minister
would not necessarily have to comply with recommendations made to him
by the Board in respect of these regulations, but that is also
true
of recommendations made pursuant to the section 7 procedures.  The
section 7 procedures call, however, for a more rigorous
process of
public participation than would follow from any representations that
might be made by the public or the Board after regulations
have been
made in terms of section 51.
[44]
I accept the force of the argument addressed to us on this
issue by counsel for the respondent and accept also for the purposes
of
this judgment that the regulations survive the appointment of the
Board and are not for a limited period only.  I am, however,
not
able to construe section 52 as requiring the Minister to follow the
procedures prescribed for making regulations after the Board
has been
constituted and is operational.  Such a construction would be
contrary to the clear language of sections 51 and 52.
[45]
I am not unmindful of the fact that the Proclamation brought
sections 7 and 52 into force without specifically referring to the
definitions
in section 1 and section 51.  Sections 7 and 52
must, however, be read in the context of the Act as a whole including
the definition
sections.  The Act cannot be construed as having
one meaning when it was promulgated, a different meaning on 20
February 2003
when the two sections came into force, and then revert
to the original meaning on 12 March 2003 when all the provisions save
for
section 37 were brought into operation.
[46]
The power vested in the President by section 55 of the Act is
to determine the date of commencement of the Act.  Although he
has the power to bring different sections into force on different
dates the President does not have the power to amend the Act by
giving sections different meanings to those that they have in the
Act.  The sections can have only one meaning and that must
be
determined by reading them with the applicable definitions.
[47]
I have also considered whether section 52 should be construed
narrowly so as to authorize only the making of regulations necessary
for the Board to be constituted and to become operational, and to
provide for other matters that might call for attention prior to
the
operative provisions of the Act being brought into force.  Section
52, read with the definitions in section 51, empowers
the Minister to
adopt any regulation “required in terms of this Act”.  The
Deputy President determined the dates on which
the various provisions
of the Act would come into force.  The validity of that
Proclamation is not disputed in these proceedings.
Once the Act
was in force it is beyond doubt that regulations making provision for
its implementation were required.  Thus,
even if a narrow
construction is given to section 52, regulations necessary for the
implementation of the operative provisions of
the Act which were
about to come into force, fell within the purview of the section at
the time the regulations were made.
There was no challenge to
any specific regulation on the grounds that it was not authorised by
section 52.
The Promotion of
Administrative Justice Act
[48]
Counsel for the respondent relied on section 33 of the
Constitution
[24]
read with section 1 of the Constitution
[25]
and the provisions of the Promotion of Administrative Justice Act
(“PAJA”)
[26]
to support their construction of section 52.  They contended
that the Constitution and PAJA contemplate that administrative
action
should be consistent with a “culture of accountability, openness
and transparency . . . in the exercise of a public power”,
[27]
and referred in particular to section 4 of PAJA which deals with
administrative action affecting the public.
[49]
Counsel for the respondent did not contend that section 52,
construed as I have suggested in this judgment, would be inconsistent
with the Constitution.  As no challenge had been made in the
application to the constitutionality of section 52, that argument
was
not open to them.  Their argument was advanced on the basis that
if the section could reasonably be construed in the manner
contended
for by them, that construction should be adopted for it would give
effect to the founding values of the Constitution, the
requirements
of section 33 of the Constitution that administrative action be
procedurally fair
[28]
and to the requirements of PAJA in that regard.
[50]
Although the respondent did not rely directly on PAJA in its
founding affidavit, it sought to do so indirectly, by using the
provisions
of PAJA to support its construction of the Act.  It
is not at all clear that using PAJA as an interpretive tool to assist
in
interpreting other legislation, as the respondent contends, is
appropriate.  PAJA regulates the manner in which certain powers
are to be exercised.  If the power under question is one within
the scope of PAJA it must be exercised consistently with PAJA.
If
it is not such a power, PAJA has no application.  Questions may
arise as to whether legislation may by necessary implication
oust the
requirements of PAJA, but they do not arise here.  Be that as it
may, I shall nevertheless consider whether section
4 of PAJA can
assist the respondent.  In developing this argument, counsel for
the respondent relied on section 4(1) of PAJA
which provides:
“
In cases where an
administrative action materially and adversely affects the rights of
the public, an administrator, in order to give
effect to the right to
procedurally fair administrative action, must decide whether—
(a)
to hold a public inquiry in terms of subsection (2);
(b)
to follow a notice and comment procedure in terms of subsection (3);
(c)
to follow the procedures in both subsections (2) and (3);
(d)
where the administrator is empowered by any empowering provision to
follow a procedure
which is fair but different, to follow that
procedure; or
(e)
to follow another appropriate procedure which gives effect to section
3.”
It was contended that section 52
must be read with section 4 of PAJA and that reading the two
together, the Minister should have made
provision for comment on the
proposed regulations before promulgating them.  Although this
was not the case made in the founding
affidavit, argument was
addressed to us by both parties on the question whether PAJA was
applicable to the making of regulations
under the Act.  I deal
briefly with that argument.
[51]
Section 4 of PAJA makes provision for notice and comment
procedures to be followed or public inquiries to be held where
administrative
action “materially and adversely affects the rights
of the public”.  â€œAdministrative action” is defined in
section 1
of PAJA as meaning “any decision taken, or any failure to
take a decision” by particular functionaries identified in the
definition.
“Decision” is defined in the same section as
meaning:
“
any decision of an
administrative nature made, proposed to be made, or required to be
made, as the case may be, under an empowering
provision, including a
decision relating to—
(a)
making, suspending, revoking or refusing to make an order, award or
determination;
(b)
giving, suspending, revoking or refusing to give a certificate,
direction, approval,
consent or permission;
(c)
issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument;
(d)
imposing a condition or restriction;
(e)
making a declaration, demand or requirement;
(f)
retaining, or refusing to deliver up, an article; or
(g)
doing or refusing to do any other act or thing of an administrative
nature, and a reference
to a failure to take a decision must be
construed accordingly.”
[52]
The definition of “decision” does not refer to the making
of regulations and it is not clear whether this constitutes
administrative
action for the purposes of PAJA.  Moreover, the
definition of “administrative action” specifically excludes “any
decision
taken, or a failure to take a decision, in terms of section
4(1)”.
[29]
It may be open to doubt, therefore, whether reliance could be placed
on PAJA in the circumstances of this case.
[53]
It is not necessary, however to decide this issue in the
present case,
[30]
nor to decide whether the immigration regulations materially and
adversely affect the rights of the public.  Even if the
Minister’s
power to make regulations in terms of section 52 is
subject to the provisions of section 4 of PAJA, I am satisfied that
the Minister
acted within the scope of section 4 for the reasons that
follow.
[54]
Section 4(4) of PAJA authorises a departure from the section
4(1) procedures.  It provides:
“
(a)
If it is reasonable and justifiable in the circumstances, an
administrator may depart from the requirements
referred to in
subsections (1) (a) to (e), (2) and (3).
(b)
In determining whether a departure as contemplated in paragraph (a)
is reasonable and
justifiable, an administrator must take into
account all relevant factors, including—
(i)
the objects of the empowering provision;
(ii)
the nature and purpose of, and the need to take, the administrative
action;
(iii)
the likely effect of the administrative action;
(iv)
the urgency of taking the administrative action or the urgency of the
matter; and
(v)
the need to promote an efficient administration and good governance.”
[55]
The Act establishes a framework for immigration control but
leaves the details of implementation to regulations made by the
Minister.
In terms of the Proclamation, the Act was due to come
into force on 12 March 2003.  If the section 7 procedures had to
be followed,
the Act would have come into force without the necessary
regulations being in place.  Without regulations the Act could
not
have been implemented.
[56]
The judgment of the High Court declaring the regulations to be
invalid does not address this problem.  The Court seems to have
assumed that the regulations made under the Aliens Control Act would
have been sufficient to enable immigration control to be maintained
pending compliance with the protracted regulation making process
prescribed by section 7.  This is what it held in its reasons
for refusing to suspend the order of invalidity that it had made.
[31]
[57]
This, however, is not correct.  Section 52(2) of the Act
provides that “subject to this Act” the regulations under the
Aliens
Control Act are to remain in force until repealed or amended.
That had the effect of preserving the old system until 12 March
2003
when the operative provisions of the Act were brought into force.
Once that happened, it was common cause that the old
regulations
would not have been an effective means of exercising immigration
control.  This is so because the Act introduces
an entirely
different system of immigration control to that which previously
existed, calling for different types of permits to be
issued to
potential immigrants seeking admission to the Republic.  Wrenched
from their empowering statute which had been repealed,
the existing
regulations if they continued to remain in force might still have
served certain purposes, but the core provisions of
the Act involving
the granting of special permits could not have been applied without
specific regulations dealing with this.
[58]
Counsel for the respondent correctly accepted that the Act
would be unworkable without its own regulations and that the old
regulations
could not fill that void.  They also accepted that
the section 7 process is a time consuming process which could not
possibly
have been complied with prior to 12 March when the operative
provisions of the Act came into force.  The validity of the
Proclamation
was not challenged.  Thus, even if section 4(1) of
PAJA is applicable to the making of regulations and it is open to the
respondent
to challenge the Minister’s failure to comply with its
provisions, it would in the light of these facts have been reasonable
and
justifiable for the Minister to depart from the notice and
comment provisions when he made the regulations.
[59]
In each case it is a question of construction whether a
statute making provision for administrative action requires special
procedures
to be followed before the action is taken.  In
addition, whether or not such provisions are made, the administrative
action
must ordinarily be carried out consistently with PAJA.
[32]
In the present case the Act does not require special procedures to be
followed for the making of regulations in terms of section
52.  And
even if PAJA is applicable to the making of regulations and a failure
to comply with section 4(1) is subject to review,
in the
circumstances of the present case, the Minister was not obliged to
comply with section 4(1).
[60]
That also disposes of the submission by counsel for the
respondent that the provisions of the Constitution and PAJA lend
force to
their contention that the notice and comment provisions of
section 7 should be treated as being applicable to section 52 of the
Act.
Section 52 has been drafted in language that makes it
clear that that the section 7 provisions are not applicable to it.
If,
as I have held, the respondent cannot rely directly on the
provisions of PAJA, there is no room for those provisions to be
applied
indirectly.
Conclusion
[61]
I conclude, therefore, that High Court erred in construing the
Act as it did.  It ought to have held that the notice and
comment
provisions of section 7 are not applicable to regulations
made under section 52 and that no other grounds had been established
for
the relief claimed by the respondent.  The application for
leave to appeal must therefore be granted and the appeal must be
upheld.
Events in the High Court
[62]
The High Court’s order declaring the regulations invalid was
made on 11 March 2003, the day before the bulk of the Act was due to
come into force.  Because of what it considered to be the
urgency of the matter, the Court made the order without giving its
reasons, indicating that those would be provided later.  After
the order had been handed down, the Minister delivered a notice
supported by an affidavit expressing his intention of applying for a
rule 18 certificate in order to appeal to this Court and,
conditionally,
for leave to appeal to the Supreme Court of
Appeal.
[33]
The effect of the application for leave to appeal was to suspend the
operation of the orders of the High Court, pending the
decision on
the application.
[34]
The respondent opposed these applications and requested the High
Court to rule, in terms of Rule 49(11), that the automatic
suspension
of the High Court’s order would itself be suspended.
[35]
[63]
The High Court declined to deal with the Minister’s
application taking the view that it should only be heard after the
Court had
handed down its full reasons.  The operative
provisions of the Act were due to come into force on the next day.
The Judge
dealing with the matter suggested to counsel for the
Minister that the Minister should consider suspending the operation
of those
sections of the Act due to come into force the following day
for a period of six months to “enable the Department of Home
Affairs
to get its house in order and apply its mind to promulgating
new regulations”.
[36]
The Minister was not prepared to do so.
[37]
[64]
Later that night, and pursuant to the request by the
respondent, the same Judge made an order in terms of Rule 49(11),
that until
18h00 on 17 March 2003:
a)         the automatic
suspension under Rule 49(11) of the order of the High Court would
itself be suspended; and
b)         only sections 4, 7
and 52 of the Act would have any force and effect.
On 17 March 2003, the High Court extended the
operation of this order until 7 April 2003, when the application for
leave to appeal
was heard.
[38]
[65]
I consider it appropriate to comment on these events because
of their importance to the practice of the courts in constitutional
matters.
[66]
It was wrong to suggest to the Minister that he should
consider suspending  the implementation of the Act until the
application
for leave to appeal had been considered.  The High
Court had dismissed the application for leave to amend the notice of
motion
to challenge the validity of the Proclamation in so far as it
provided that the Act would come into force on 12 March 2003, holding
that grounds had not been established for the making of such an
order.
[39]
That being so the Proclamation had to be treated as being valid.  The
Minister had no power to suspend the operative provisions
of the Act
which was due to come into force within a few hours.  It would
have been unlawful for the Minister to instruct his
department to
ignore the law when it came into force and to apply the law that had
been repealed by Parliament.  He correctly
declined to do so.
[67]
When the Minister declined to follow the Judge’s proposal,
the Judge then made an order which in effect achieved the same
purpose,
declaring that only sections 4, 7 and 52 of the Act would
have any force until 17 March 2003.  This order was later
extended
until 7 April 2003.  The High Court does not indicate
what it considered to be the source of its power to make such an
order.
The only reasons given are that this would prevent the
chaotic situation envisaged by the Minister from developing, enable
the Court
to furnish a fully reasoned judgment, and would facilitate
the formulation of grounds of appeal, should the Minister be disposed
to continue with his application for leave to appeal.
[40]
Presumably the court considered this to be a just and equitable
order
[41]
in the light of the declaration of invalidity that had been made.
[68]
The grant or refusal of the application for leave to appeal
could have had no bearing on the validity of the Act.  Section
172(1)
of the Constitution empowers a Court when deciding a
constitutional matter to make “any order that is just and
equitable”.
Section 172(1) does not, however, empower it to
suspend the provisions of an Act of Parliament or a Proclamation
which have not been
the subject of a proper challenge before it, and
it is open to doubt whether a court has the power to do so.  But
even if such
a power exists (and I express no opinion on that issue)
it would have to be exercised most sparingly and only in the most
exceptional
circumstances.
[69]
In
President of the RSA and Others v United Democratic
Movement and Others
[42]
this Court held:
“
Having regard to the
importance of the legislature in a democracy and the deference to
which it is entitled from the other branches
of government, it would
not be in the interests of justice for a court to interfere with its
will unless it is absolutely necessary
to avoid likely irreparable
harm and then only in the least intrusive manner possible with due
regard to the interests of others
who might be affected by the
impugned legislation.”
In the present case, Parliament
had discarded the old regime and introduced in its place a new form
of immigration control.
To direct that the old regime must
remain in force after the Act introducing the new regime had come
into operation constituted an
unjustifiable interference with the
will of Parliament.
[70]
If there was indeed a concern at that time that the
declaration of invalidity might lead to a chaotic situation, it was
not “absolutely
necessary” to address that situation by
suspending the operation of the Act, the validity of which had not
been challenged, nor
was it the least intrusive manner possible of
dealing with the situation.
[71]
There was no challenge to the substance of the Act or the
regulations and nothing to suggest that the new immigration regime
that
they introduced would result in any harm or be more invasive of
rights than the old regime.  An obvious and less intrusive
remedy
lay in suspending the order that had been made, which the
Court was empowered to do under section 172(1) of the Constitution.
If necessary, conditions could have been attached to the suspension
to address any prejudice that might result from such an order.
[43]
Costs
[72]
Courts should scrutinise carefully litigation initiated by
attorneys in their own name and not on behalf of clients to secure
rulings
on issues that do not affect them personally.  Such
practice is open to abuse.  In the present case, however, the
application
was directed to an issue that affected the respondent
itself, and to an alleged infringement of its constitutional rights.
It
quite properly did not seek to recover any costs for its own
legal services.  Although it is unusual for an attorney to
become
personally involved in litigation of this nature, there is no
reason to treat the respondent differently to any other litigant
seeking
to assert a constitutional right.
[73]
The bringing into force of the Act approximately a year after
it had been promulgated in circumstances in which the Minister was
required
to make regulations without first engaging the public and
the Board, was unfortunate and precipitated the challenge to the
validity
of the regulations.  The issues raised by the
respondent in these proceedings were complex and not lacking in
substance.
In the circumstances, I consider that it would be
appropriate for each party to pay its own costs in the High Court and
in this Court.
[74]
The following order is made:
1.
The application for leave to appeal is granted
2.
The appeal is upheld.
3.
The order made by the High Court is set aside and in its place the
following is
substituted:
(a)  The application is
dismissed.
(b)  No order is made as to
costs.
4.
No order is made in respect of the costs of the appeal.
Langa DCJ, Goldstone J, Madala
J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J and Yacoob J concur
in the judgment of Chaskalson CJ.
For the
Applicant:
N.B. Tuchten SC,
D.N. Unterhalter SC and A. Annandale instructed by
Larson Falconer Inc, Durban.
For the Respondent:
A. Katz and J. De Waal instructed
by Eisenberg & Associates, Cape
Town.
[1]
Act 13 of 2002.
[2]
Act 96 of 1991.  These regulations remained in force by virtue
of section 52(2) of the Act which provides:
“
Subject to this Act, any regulations adopted under
the previous Act shall remain in force and effect until repealed or
amended.”
[3]
Eisenberg & Associates v Minister of Home Affairs and Others
,
unreported judgment of the Cape High Court, case no. 1301/03.
[4]
Id at paras 2-3.  What the respondent in effect sought to place
in issue was the decision to bring the operative provisions
of the
Act into force on 12 March 2003.
[5]
Section 7(1)(a) read with the definition of “regulations” and
“publish” in section 1.
[6]
Section 7(1)(b) read with the definitions of “regulations and
“publish” in section 1.
[7]
Section 7(1)(c) read with the definition of “publish” and
“regulations” in section 1.
[8]
Section 7(4).
[9]
Id
[10]
Section 7(2) read with the definition of “prescribed”.
[11]
Section 55(1) of the Act.
[12]
In terms of Section 52(2) of the Act, regulations adopted under the
Aliens Control Act would remain in force until repealed.
This
is referred to more fully in para [57] below.
[13]
This is sanctioned by section 13(3) of the Interpretation Act 33 of
1957 which provides:
“
If any Act provides that that Act shall come into
operation on a date fixed by the President or the Premier of a
province by proclamation
in the Gazette, it shall be deemed that
different dates may be so fixed in respect of different provisions of
that Act.”
[14]
R13 of 2003, RGN 7589 in GG 24951.
[15]
Sections 90(1) and (2) of the Constitution provide:
“
90.        Acting
President
(1)
When the President is absent from the Republic or otherwise unable
to
fulfil the duties of President, or during a vacancy in the office of
President, an office-bearer in the order below acts as President:
(a)
The Deputy President.
(b)
A Minister designated by the President.
(c)
A Minister designated by the other members of the Cabinet.
(d)
The Speaker, until the National Assembly designates one of its other
members.
(2)
An Acting President has the responsibilities, powers and functions
of
the President.”
[16]
The respondent applied for an amendment to enable him to challenge
the validity of the Proclamation in so far as it fixed 12 March
2003
as the date of commencement of the operative provisions of the Act.
This application was refused.  See paragraph
[6] above.
[17]
High Court judgment, above n 3 at paras 25-6
[18]
Id at para 47.
[19]
Section 172(1) of the Constitution provides as follows:
“
When deciding a constitutional matter within its
power, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration
of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period
and
on any conditions, to allow the competent authority to correct the
defect.”
[20]
High Court judgment, above n 3 at paras 61-3.
[21]
Id at para 47.
[22]
Pharmaceutical Manufacturers Association of SA: in Re Ex Parte
President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC) at para 20.
[23]
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000
(1) BCLR 39
(CC);
Dawood and Another v Minister of Home Affairs
and Others; Shalabi and Another v Minister of Home Affairs and
Others; Thomas and Another
v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC);
Booysen and Others v
Minister of Home Affairs and Another
2001 (4) SA 485 (CC); 2001
(7) BCLR 645 (CC).
[24]
Section 33(1) of the Constitution provides that:
“
Everyone has the right to administrative action that
is lawful, reasonable and procedurally fair.”
[25]
Section 1(d) sets out that one of the founding values of the
Constitution is a “. . . multi-party system of democratic
government,
to ensure accountability, responsiveness and openness”.
[26]
Act 3 of 2000.
[27]
Preamble to PAJA.
[28]
It is also relevant to have regard to section 39(2) of the
Constitution which provides:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
[29]
Paragraph b(ii) of the definition of administrative action in section
1 of PAJA.
[30]
It raises complex issues including the question whether a
construction of PAJA that excludes the making of regulations from the
ambit
of administrative action would be consistent with the
Constitution.
[31]
High Court judgment, above n 3 at paras 61-3.
[32]
It is not necessary to consider whether a statute can specifically
exclude or limit the application of such provisions without
contravening
the Constitution.  That issue does not arise in the
present case and I therefore refrain from dealing with it.
[33]
High Court judgment, above n 3 at para 7.
[34]
See rule 49(11) of the Uniform Rules of Court.
[35]
High Court judgment, above n 3 at para 7.
[36]
Id at para 8.
[37]
Id at para 9.
[38]
Id at paras 9-10
[39]
See para [6] above.
[40]
High Court judgment, above n 3 at paras 9-10.
[41]
See section 172(1)(b) of the Constitution, quoted at n 19 above.
[42]
2002 (11) BCLR 1164
(CC) at para 31.
[43]
See
Dawood and Another v Minister of Home Affairs and Others
above n 23 at paras 66-8.