Buthelezi wins ConCourt case

2003-06-27 14:44

Cape Town - The Constitutional Court on Friday ruled in favour of Home Affairs Minister Mangosuthu Buthelezi in his case against Cape Town immigration lawyer Gary Eisenberg, who challenged the constitutionality of the new Immigration Act regulations.

The court granted Buthelezi's application for leave to appeal against a decision by the Cape High Court declaring the regulations invalid, and upheld the appeal.

The High Court earlier this year ruled that Buthelezi had acted unconstitutionally when he adopted the regulations pertaining to the new Immigration Act without public notice and comment.

Buthelezi's legal team argued before the Constitutional Court that the regulations were only transitional and therefore did not require public notice and comment.

David Unterhalter SC submitted that section 52 of the act only required Buthelezi to adopt regulations and publish them in the Government Gazette.

Only after the Immigration Advisory Board had been convened would permanent regulations be drafted.

Followed a fair procedure

These regulations would be subject to section 7 of the new act that provided for a procedure of notice and comment from the public.

Andrew Tuchten SC, also for home affairs, said the new regulations did not adversely effect public rights.

He said the founding affidavit, lodged by Eisenberg against Buthelezi, assumed the minister was obliged to entertain public comment on the regulations.

The minister, however, had the right to follow a fair, but different, procedure, which he did.

In his written judgment, Chief Justice Arthur Chaskalson said the High Court erred in construing the act as it did.

Among other things, it ought to have held that the notice and comment provisions of section 7 were not applicable to regulations made under section 52.

"The application for leave to appeal must therefore be granted, and the appeal must be upheld," he said.

Thus, the order by the Cape High Court was set aside and Eisenberg's application dismissed.

Regarding costs, Chaskalson said "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".

Therefore, no order was made as to costs, including the appeal.

Eight other Constitutional Court judges concurred with Chaskalson's judgment.

- SAPA