Immigration regulation 'unconstitutional'
2003-02-17 17:59
Cape Town - The Cape High Court on Monday declared the country's new immigration regulations unlawful and inconsistent with the Constitution, in a ruling on an application brought against Home Affairs Minister Mangosuthu Buthelezi.
The urgent application was brought against Buthelezi as a first respondent and President Thabo Mbeki as second respondent by specialist immigration lawyer Gary Eisenberg.
Eisenberg said after winning the case that the court's ruling effectively nullified the immigration regulations.
He said that at this stage the "implications of the order are not known", and said the minister would have to "republish the regulations".
In an order delivered by Judge Andre Blignault and agreed to by Judge Dennis Davis, the court declared that the immigration regulations of November 25, 2002 were "unlawful and inconsistent with the constitution of the Republic of South Africa" and therefore invalid.
In his judgment Blignault said that the basis of Eisenberg's case was two-fold. Firstly, the immigration regulations were not in force because the President had not yet determined a date for them to come into effect by publication in the government gazette.
Secondly, provisions for public comments were not followed in accordance with section seven of the Immigration Act. However, the court did not pronounce on section seven of the act relating to the provisions for public comment.
Academic interest
Blignault said that he wouldn't pronounce on section seven because it was of "academic interest only".
He said he did not agree with the heads of argument of advocate David Unterhalter, who appeared on behalf of the minister, saying that his case relied heavily on the "matter of prematurity".
The court upheld the argument of advocate Anton Katz, who appeared for Eisenberg, when he argued that because the presidential proclamation bringing the act into force was not published in the government gazette, the minister in making the regulations had acted without any power to do so. Blignault also ordered that the costs of the case be borne by the respondents, including the costs of two advocates.
According to Eisenberg he brought the matter to court because "he has an interest in the advice he gives to people... and the law in this case was itself unlawful... the public's right to fair comment was threatened".
Monday's ruling is the latest twist in the controversial legislation which has been eight years in the making.
Last year the law became a bone of contention between the Inkatha Freedom Party and the African National Congress, particularly over sections dealing with the proposed immigration courts, work permit quotas and the role of accountants in certifying that a foreign worker's skills are necessary for South Africa.
- SAPA