Immigration Act: New controversy

2003-04-08 21:58

Cape Town - Fresh controversy erupted over South Africa's new immigration regime Tuesday when it emerged that it may have been put into operation unlawfully on Monday night.

However, this suggestion has been dismissed as "absolute nonsense" by the home affairs ministry.

The regulations that accompany the new Immigration Act were declared invalid by the Cape High Court last month, but on Monday the ministry announced it had lodged notice of an appeal with the Constitutional Court.

The effect of filing notice would have been to suspend the high court ruling, and on Monday evening home affairs officials were given the go-ahead to implement the new act, together with the disputed regulations, at points of entry to the country.

But it has now emerged that the Constitutional Court did not in fact accept the ministry's bid to file, because its lawyers did not follow correct procedure.

According to court registrar Martie Stander, they only filed the correct documents at 13:00 on Tuesday.

"We received a fax yesterday (from the lawyers) which we refused to take, because the rules of the court say it's 25 copies that need to be lodged," she said on Tuesday afternoon.

"They didn't adhere to the rules of the court."

Stander said the lawyers did phone to check the fax had arrived.

"We just gave them the information that, it's not that we don't want to accept it, we cannot accept a document by way of fax."

This means, under one interpretation, that for some 18 hours immigration officials were doing their job according to an unlawful set of regulations.

They should in fact have been operating under the new act along with completely unrelated regulations issued under the old Aliens Control Act.

This would have created a situation which both the ministry and specialist immigration lawyer Gary Eisenberg, the man who brought the challenge against the regulations, acknowledge would have been chaotic and unworkable - even though perfectly legal.

Question mark

It would also appear to place a question mark over the whole hearing of a high court application late on Monday afternoon by Eisenberg for a special ruling that the status quo should remain despite what he - and a full bench of the court - assumed was a valid lodging of Constitutional Court papers.

The court dismissed his application, and awarded costs of two counsel against him.

However Mario Ambrosini, special adviser to home affairs minister Mangosuthu Buthelezi, told Sapa that this interpretation was "absolute nonsense".

"The papers were in the Constitutional Court at four o'clock yesterday," he said. "At ten o'clock this morning the chief justice was reading them."

He said filing was "a process" and that the papers were merely stamped by the registrar's office at 13:00.

"It's splitting hairs in a situation where there are no hairs to be split," he said.

Eisenberg said on Tuesday afternoon he had written a letter to judge Deon van Zyl, one of the two judges who have been dealing with the ongoing court battle over the regulations, pointing out what happened and asking for his direction.

Court rules do allow judges to vary or rescind orders they have already made, without being approached by means of a formal application.

The new act and regulations were supposed to come into force at midnight on March 11, but after Eisenberg's successful challenge earlier that day, Van Zyl ruled that the old act and regulations should continue in force until 18:00 on Monday April 7.

- SAPA