Challenge to South African
Immigration Regulations

SOUTH AFRICAN IMMIGRATION REGULATIONS

LEGAL CHALLENGE TO THE IMMIGRATION REGULATIONS

PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME AFFAIRS
MINUTES OF MEETINGS

South African Immigration Regulations

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Legal Challenge to the Immigration Regulations

Immigration regulations approved (Business Day, 01/07/2003) - Officials at the home affairs department must have heaved a collective sigh of relief after the Constitutional Court held last Friday that new immigration regulations, gazetted without public notice or comment, were lawful. The ruling brought an end to months of uncertainty for business and government. This was a decisive win for Home Affairs Minister Mangosuthu Buthelezi, who has spent eight years haggling over the Immigration Act. Last year the law became a bone of contention between the Inkatha Freedom Party and the African National Congress, particularly over sections dealing with proposed immigration courts, work permit quotas and the role of accountants in certifying that a foreign worker's skills were necessary for SA. It appeared that the department was not sure of a legal victory. It hastily appointed an Immigration Advisory Board, as required by the Act, and started public comment procedures on March 14 on what would become the final regulations. All of this was done just three days after a Cape Town High Court ruling declared the regulations invalid because they had not been made available for public comment before they were gazetted. If the Constitutional Court had not confirmed the high court order, the "chaos" mentioned in argument by legal counsel for Buthelezi could have become a reality until the final regulations for the Immigration Act came into effect. The existing Aliens Control Act's regulations are not compatible with the new Immigration Act. But the court cases delayed the implementation of the new Act's regulations and the department would not have been able to do its work effectively had the Constitutional Court not ruled in its favour. The department had to scramble to get new application forms to its regional offices and international representatives, after the Act and its regulations came into force by default on April 7, following an application for leave to appeal to the Constitutional Court by the minister. Rulings of a previous court are suspended while an appeal is being considered. In a unanimous judgment, the Constitutional Court ruled that the Immigration Act made provisions for Buthelezi to make interim regulations without calling for public comment in order to get the new Act up and running in the required time.
Chief Justice Arthur Chaskalson agreed with Buthelezi's counsel that the high court erred in holding that the minister was required to notify the public and give them time to comment before making regulations.

He said the Act provided for two regulation-making mechanisms, one that required public notice after consultation with the Immigration Advisory Board. However, since the board had not yet been constituted, the second mechanism came into effect, which gave Buthelezi the power to make regulations without consultation with the public. Chaskalson said it was accepted by both parties that the Act would be unworkable without the regulations, and that existing regulations could not fill that void. The public notice and comment procedure was a long process which could not have been complied with prior to the operative provisions of the Act coming into force. Chaskalson took the minister to task, however, for the manner in which the matter had been handled and ruled that both sides cover their own costs. "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," said Chaskalson. "The issues raised by the respondent (Cape Town immigration lawyer Gary Eisenberg) in these proceedings were complex and not without substance." Buthelezi said after the ruling that he had been vindicated by the court's findings, which served to create certainty and stability for his department. He said the legal challenge was little more than a political effort to undermine him and his department. Eisenberg said he was also satisfied with ruling. "At the end of the day, I got what I wanted an opportunity to comment on the (interim) regulations and make suggestions," he said. "I wanted government to realise that they are accountable and cannot do whatever they want." The regulations, published on November 25 last year, were first thrown out by the Cape High Court on February 17 this year, after they were found to be "unlawful and inconsistent with the constitution of the Republic of SA". The court ruled that the immigration regulations could not be enforced as President Thabo Mbeki had not yet set a date for them to come into effect in the Government Gazette. This was hastily corrected and the regulations were gazetted. The high court again declared the regulations invalid on March 11, a day before they were to come into effect, because Buthelezi had failed to invite public comment prior to promulgation of the new regulations.

Buthelezi wins immigration battle in court (The Mercury, 30/06/2003) - Home affairs minister Mangosuthu Buthelezi has won a decisive battle over his new immigration regulations. In a unanimous judgment written by chief justice Arthur Chaskalson, the court ruled on Friday that the law did make provision for Buthelezi to make interim regulations, without calling for public comment. The judgment was, however, academic as Buthelezi had already started the public comment procedures for the final immigration regulations, after an earlier judgment ordering him to do so was given in the Cape High Court. The principal dispute between immigration attorney Gary Eisenberg and Buthelezi was whether the minister had to call for public comment on these regulations. Eisenberg said yes.  The court found that the consultation processes referred to by the law were aimed at regulations made after the immigration board was constituted. Chaskalson said that another part of the Act dealt with transitional provisions which involve another procedure for making regulations. These could be made without first calling for public comment. Chaskalson also rapped the Cape High Court judges over the knuckles for interfering with the work of the legislature.

Buthelezi vindicated on Immigration Act (The Star, 30/06/2003) - After months of late-night court battles and chaos in immigration circles, Home Affairs Minister Mangosuthu Buthelezi has won a decisive battle over his controversial new immigration regulations. In a unanimous judgment written by Chief Justice Arthur Chaskalson, the court ruled on Friday that the law did make provision for Buthelezi to make interim regulations, without calling for public comment, to get the new immigration regime up and running. The judgment was, however, slightly academic as Buthelezi had already started the public-comment procedures for the final immigration regulations after an earlier judgment ordering him to do so was given in the Cape High Court. Buthelezi considered it as proof that he was right about more than just the law. Leading immigration attorney Gary Eisenberg, who brought the latest case against Buthelezi, said he may have lost his appeal, but he did win the battle. "When the minister tabled his regulations for public comment, I had won the battle," he said. "I only wanted to comment, this was all that this was about. If we had not gone to court, we would never have been certain that the minister would have called for comment," Eisenberg said. Buthelezi said the decision "vindicated the strength of my convictions and concerns about how matters relating to immigration reform have over and again been used for political manoeuvring, to the detriment of South Africa". He added that it was "remarkably peculiar" that Eisenberg's firm, which originally brought the case, had not commented on the final regulations. "One will keep wondering what this litigation was really all about," Buthelezi said. But Eisenberg made it clear that he had commented on the regulations about a month ago. "On June 2, I sent my comments by fax with a covering letter. I thanked the minister for the opportunity to comment. My secretary called his office and confirmed that they did receive the fax." In his judgment, Justice Chaskalson was critical of the messy way in which the new Immigration Act was brought into operation. He said the act empowered the minister of home affairs to make regulations after following a consultative process involving the public and the Immigration Board. It also provided for regulations to be made before the board was constituted. The court made no order regarding costs.

Quandary over immigration rules ends (Business Day, 30/06/2003) - Home Affairs Minister Mangosuthu Buthelezi did not exceed his powers when he made regulations for the Immigration Act without providing an opportunity for public comment, the Constitutional Court has ruled. The ruling ended months of uncertainty after the Cape Town High Court found on March 11 that regulations for the Immigration Act were ultra vires and unconstitutional shortly before they were to come into effect. That decision led to concern among immigration officials that there would be chaos. Buthelezi said in a statement on Friday that he had been vindicated by the ruling, which had served to create certainty and stability in the new immigration control system. The Immigration Bill has been eight years in the making, and has had a long and bumpy history. The ruling was not a complete victory for government, however, Chief Justice Arthur Chaskalson held that issues that were raised by immigration lawyer Gary Eisenberg, who took the matter to court, were "not lacking in substance", and consequently he ruled that each side had to pay its own costs. The problem facing the Constitutional Court was that the new act was unworkable without its regulations, and they were not compatible with the regulations from the old Aliens Control Act. Government's appeal application to the Constitutional Court immediately after the ruling had the effect of freezing the high court decision, making it possible for the Immigration Act and its regulations to come into effect on March 12 as intended. Before the Constitutional Court gave its ruling the Immigration Advisory Board was constituted and the regulations were submitted for public comment. On Friday the Constitutional Court granted Buthelezi leave to appeal against the high court decision, and upheld the appeal. Chaskalson agreed with the argument by Buthelezi's legal team consisting of David Unterhalter SC and Andrew Tuchten SC that the regulations were only transitional, and therefore did not require public notice and comment. The act distinguishes between two regulation-making mechanisms one to be used before the establishment of the Immigration Advisory Board, and the other to be used after the Board has been established. The public notice requirement was found by Chaskalson to apply only after the board had been constituted. Chaskalson said the notice and comment procedure was a time-consuming process that could not possibly have been completed prior to the provisions of the act coming into force. Eisenberg said he felt the Constitutional Court ruling was "fair and well considered". He said that he had achieved what he set out to achieve to be given an opportunity to comment on the regulations.

Immigration Act (Cape Town, Dispatch Online, 28/06/2003) - Home Affairs Minister Mangosuthu Buthelezi yesterday welcomed the Constitutional Court's decision to uphold the legality of the new Immigration Act regulations, and criticised "ill-advised politicians" for misusing the issue. "This decision vindicates the strength of my convictions and concerns (about) how matters relating to immigration reform have over and again been used for political manoeuvring to the detriment of South Africa," he said. "Newspapers ran front-page articles echoing this statement by ill-advised politicians who saw this litigation as a convenient opportunity for further bashing.  "It is remarkably peculiar that the law firm which originally brought forward this case, pushed it through the entire court system and complained that its right to comment had been violated -- made no comment whatsoever when I began a new process of regulating.  "One will keep wondering what this litigation was really all about." However, the court's decision created certainty and stability in the new system of immigration control.  Buthelezi said it was important now for all stakeholders to work together to ensure its success, and promote serene debates to fine-tune migration policies in the country's interests without political overtone. The court ruled in Buthelezi's favour in his case against Cape Town immigration lawyer Gary Eisenberg, who challenged the constitutionality of the new regulations. It 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 without public notice and comment. Buthelezi's legal team argued that the regulations were only transitional and therefore did not require public notice and comment. The order by the Cape High Court was set aside and Eisenberg's application dismissed. Regarding costs, Chief Justice Arthur 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". Eight other Constitutional Court judges concurred with Chaskalson's judgment.

Immigration Act legal - Concourt (Cape Town, Dispatch Online, 28/06/2003) - Home Affairs Minister Mangosuthu Buthelezi yesterday welcomed the Constitutional Court's decision to uphold the legality of the new Immigration Act regulations, and criticised "ill-advised politicians" for misusing the issue. "This decision vindicates the strength of my convictions and concerns (about) how matters relating to immigration reform have over and again been used for political manoeuvring to the detriment of South Africa," he said. "Newspapers ran front-page articles echoing this statement by ill-advised politicians who saw this litigation as a convenient opportunity for further bashing. "It is remarkably peculiar that the law firm which originally brought forward this case, pushed it through the entire court system and complained that its right to comment had been violated -- made no comment whatsoever when I began a new process of regulating. "One will keep wondering what this litigation was really all about." However, the court's decision created certainty and stability in the new system of immigration control. Buthelezi said it was important now for all stakeholders to work together to ensure its success, and promote serene debates to fine-tune migration policies in the country's interests without political overtone. The court ruled in Buthelezi's favour in his case against Cape Town immigration lawyer Gary Eisenberg, who challenged the constitutionality of the new regulations. It 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 without public notice and comment. Buthelezi's legal team argued that the regulations were only transitional and therefore did not require public notice and comment. The order by the Cape High Court was set aside and Eisenberg's application dismissed. Regarding costs, Chief Justice Arthur 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". Eight other Constitutional Court judges concurred with Chaskalson's judgment.

Immigration case had political overtones, says minister (Cape Town, Sapa, 27/06/2003) - Home Affairs Minister Mangosuthu Buthelezi on Friday welcomed the Constitutional Court's decision to uphold the legality of the new Immigration Act regulations, and criticised "ill advised politicians" for misusing the issue. The decision to uphold the regulations, made in February, vindicated much more than his having been right on a matter of law, Buthelezi said in a statement. "This decision vindicates the strength of my convictions and concerns (about) how matters relating to immigration reform have over and again been used for political manoeuvring to the detriment of South Africa. "Newspapers ran front page articles echoing this statement by ill-advised politicians who saw this litigation as a convenient opportunity for further bashing," he said. "It is remarkably peculiar that the law firm which originally brought forward this case pushed it through the entire court system and complained that its right to comment had been violated, made no comment whatsoever when I began a new process of regulating. "One will keep wondering what this litigation was really all about." However, the Court's decision created certainty and stability in the new system of immigration control. It was important now for all stakeholders to work together to ensure its success, and promote serene debates to fine tune migration policies in the country's interests without political overtones, Buthelezi said. Earlier on Friday, the Court ruled in Buthelezi's favour in his case against Cape Town immigration lawyer Gary Eisenberg, who challenged the constitutionality of the new 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 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. Advocate David Unterhalter, SC, submitted that Section 52 of the Act only required him to adopt regulations and publish them in the Government Gazette. Only after the Immigration Advisory Board had been convened would permanent regulations be drafted.

These regulations would be subject to Section 7 of the new Act that provided for a procedure of notice and comment from the public. Advocate 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 judgement, 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 judgement.

Xenophobia, red tape hurt refugees in SA (IOL, 20/06/2003) - Even though refugees are entitled to the same constitutional rights as South Africans, they often end-up competing with the locals for access to essential social services provided by the government... and losing. "Often they run into anti-foreign sentiments at clinics or other places where they should receive services. Also, they often do not have the papers they need to access services to which they are entitled,i explains Vincent Williams of the South African Migration Project (SAMP). South Africa has about 40 000 refugees, according to research published in 2001. The number could be more now. The South African Constitution guarantees its citizens a range of social rights, including education, health and social security like the R120 monthly child support grant. Refugees are also entitled to these rights.  But South Africa does not have the resources to provide these services to its own poor who make up 45 percent of the country's population. The government is also concerned that it may be forced to extend social security rights to permanent residents from other countries, who are living in South Africa. Presently, the government is fighting a case in the Constitutional Court, in which human rights lawyers are trying to get it to extend social security grants to permanent residents, mainly from neighbouring countries. The South African Department of Social Welfare estimates that 120 000 permanent residents - from Mozambique - have been exempted and are receiving assistance. Some illegal immigrants are also believed to be abusing the system. There is no figure available for illegal migrants. But there were between 2,5 and five million of them in South Africa in 1998, according to the Department of Home Affairs. Commenting on the Constitutional Court case in the daily newspaper, The Sowetan, the chief director of communications in the Department of Social Development, Mbulelo Musi, said South Africa was not in a position to extend assistance to all the poor  from the continent who had reached South Africa. "South Africa's commitment to political stability, peace, security and the economic reconstruction of the continent and its people remains unquestionable. Yet there is the reality of having to deal with limited and finite resources. This reality would of necessity make it impossible for South Africa to shoulder all the challenges of the continent's recovery," Musi said.

As the most economically developed country on the continent, he said, South Africa has a special role in efforts to tackle poverty in Africa Nalong with international agencies and donor nations. More than 350 million people - over 50 percent of Africa's population - live below the poverty line of one US dollar a day, according to the World Bank. Musi said South Africa's commitment to resolving conflicts in the Democratic Republic of Congo (DRC) and Burundi, among others, and its leading role in New Partnership for Africa's Development (Nepad) - a programme to kickstart the social and economic development of the continent - was an indication of the country's commitment to alleviating poverty on the continent. The debate about how much social assistance South Africa can extend to refugees and migrants from the continent was taking place just before the World Refugee Day, on June 20. The United Nations High Commission for Refugees (UNHCR) estimates that there are about 4,17 million refugees on the continent. In a statement, the UN High Commissioner for Refugees, Rudd Lubbers, said: "This year's World Refugee Day is dedicated to millions of young people whose futures have been jeopardised by war, persecution and exile. If refugee situations drag on for years with no political solution in sight, the enormous potential of whole generations can be lost in the dust of a forgotten camp. This is a real tragedy." He pointed out that of the nearly 20 million refugees in the world, about 35 percent of them youngsters between the ages of 12 and 24. "If young refugees are not properly protected and denied opportunities to learn the skills they need to live productive, independent lives, they are likely to contribute to the next round of conflict," he warned. In his message to mark the day, UN Secretary-General Kofi Annan said: "In some parts of the world, boys as young as 15 are forcibly recruited to fight somebody's conflict, often for reasons they cannot comprehend. They are among the more than 300 000 young people between 15 and 17 fighting in some of the world's most violent wars". "Even if they escape death or injury, they are traumatised for life by the brutality of the experience," he added.

Court ponders best path on immigration controls (Business Day, 22/05/2003) - The Constitutional Court grappled with the problem yesterday of what should replace the disputed Immigration Act regulations should it agree with the Cape Town High Court ruling that the regulations are invalid and unlawful. Chief Justice Arthur Chaskalson questioned legal counsel for Home Affairs Minister Mangosuthu Buthelezi and immigration lawyer Gary Eisenberg about whether they had considered possible alternatives to fill the vacuum that would be created, given that the prior act, the constitutionally challenged Aliens Control Act, has been repealed. David Unterhalter, for Buthelezi, told the bench that there would be "chaotic consequences" with regard to immigration controls if the act were to be left in force without the regulations. Buthelezi has requested that if the Constitutional Court finds in favour of the previous ruling, it could suspend the order of invalidity for a year to allow for the correction of the regulations and to avoid disrupting the immigration process. The high court has already turned down this request from Buthelezi. Eisenberg is requesting that the provisions of the Immigration Act be suspended for a period until the new regulations have been promulgated. The regulations were meant to come into effect on March 11, but Eisenberg secured a second high court ruling that they were unlawful. Buthelezi contends that the high court erred in holding that he was required to notify the public and give them time to comment before making the regulations. He holds that the Immigration Act provides for two regulation-making mechanisms, one that requires public notice after consultation with the Immigration Advisory Board. However, since the board had not yet been constituted, the second mechanism came into effect, which gave him power to make regulations without consultation. Anton Katz, for Eisenberg, said that Buthelezi's interpretation of the act in this regard constituted a violation of the Promotion of Administrative Justice Act. The court postponed judgment yesterday.

Immigration rules in top court dispute (The Star, 21/05/2003) - The Constitutional Court is grappling with the legitimacy of new immigration regulations. Yesterday the court was asked to establish if the minister of home affairs was entitled to introduce the controversial regulations without calling for public comment. About a year ago the Immigration Act was hastened through parliament to meet a Constitutional Court deadline after several sections of the Aliens Control Act were declared unconstitutional. While it was a bill before parliament, there were several complaints about it being confusing. In one of the judgments striking down immigration regulations introduced to make the act operational, Cape High Court Judge Deon van Zyl commented: "While the conception of the (Immigration) Act was relatively easy, its birth as a fully-fledged statute ... has been fraught with difficulties. This may be attributed to over-hastiness to get the act on track and, perhaps, to old-fashioned bureaucratic bungling." The regulations were declared unconstitutional twice this year. The Department of Home Affairs appealed against the last judgment against it in the Constitutional Court. The appeal was heard yesterday. The court was also asked to develop common law to give individuals the right to query the constitutionality of a law and challenge it on behalf of the public, without proving that it is contravening a specific human right. Gary Eisenberg, a leading South African immigration lawyer, claimed that he could ask the court to sort out the issue on behalf of the public. The main issue before court was whether the minister of home affairs could make regulations without tabling them for public comment. The minister's legal team said he could. They said the law made provision for two types of regulations - final and interim - and gave the minister power to make both. David Unterhalter SC, for the minister, said that the regulations issued in February were interim in nature and did not require public comment. He said the minister had changed some of the regulations and had tabled a draft of final regulations for comment recently.

He said that the purpose of interim regulations would be to get the new immigration dispensation up and running and to keep it going while final regulations are taken through the comment process. Advocate Anton Katz, for Eisenberg, did not agree the minister could do this. He agreed with Unterhalter that there were two types of regulations. He said, however, that the distinction must be drawn between regulations made before the Immigration Advisory Board is established and after the board has been set up. This is because the law requires the minister to be in close consultation with the board when he makes regulations, he said. Chief Justice Arthur Chaskalson asked Unterhalter why the minister had then made comprehensive regulations and not only issued a skeleton set to get things going. Unterhalter answered that the previous immigration regime was irreconcilable with the present one and a whole new set of working rules were needed. After a long debate about what the law meant when it stated that the board must be convened and where that fell in the regulation-making process, Justice Richard Goldstone asked: "So what must they do after they convened? Have tea?" "They would probably need a regulation to do that, too," Justice Zac Yacoob observed drily. The court reserved judgment on the matter.

Concourt reserves judgement on Immigration Act case (SABC, 21/05/2003) - The Constitutional Court has reserved judgement in the application by Mangosuthu Buthelezi, the Home Affairs Minister, for leave to appeal against a High Court ruling that declared sections of the Immigration Act invalid. Last month the Cape High Court found that the minister had failed to invite public comment as required by law. The legal team for the minister argued that the regulations were only transitional and therefore did not require public notice and comment. Arthur Chaskalson, the Chief Justice, pointed out that the old Act had caused several problems and that the Constitutional Court had on several occasions pointed out it was unconstitutional in several aspects.

Judgement reserved on Buthelezi appeal bid (Dispatch Online, 21/05/2003) - The Constitutional Court yesterday reserved judgment on whether Home Affairs Minister Mangosuthu Buthelezi will be granted leave to appeal against a decision by the Cape High Court on the constitutionality of new Immigration Act regulations. The Cape High Court decided that Buthelezi had acted unconstitutionally when he adopted the regulations pertaining to the new Immigration Act without public notice and comment.  The legal team for the minister argued that the regulations were only transitional and therefore did not require public notice and comment. Advocate David Unterhalter, SC, submitted that Section 52 of the Act only required him to adopt regulations and publish them in the Government Gazette. Only after the Immigration Advisory Board had been convened would permanent regulations be drafted. These regulations would be subject to Section 7 of the new Act that provided for a procedure of notice and comment from the public.  However, several of the nine judges questioned this, pointing out that no provision was made for a deadline or expiry date.  Unterhalter said the new regulations were vital to the implementation of the new Immigration Act as it differed vastly from the old Aliens Control Act.  "The architecture of the new Act is so different from the old act that the old regulations cannot be conjoined to it in any way," he said.  Advocate Andrew Tuchten, SC, also for Home Affairs, said the new regulations did not adversely effect public rights. He said the founding affidavit, lodged by Cape Town immigration lawyer Gary 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.  Tuchten also said that the Promotion of Administrative Justice Act (PAJA) did not apply to the adopting of the regulations.  He said the Act was promulgated to protect the public's direct rights "on the ground", for example in a case where a dam is built in a certain area.  When delegated legislation is made, the PAJA did not apply. He said drawing up and adopting regulations was not an administrative function. Imposing them was administrative.  He said that once the new immigration regime was up and running the public would have the right to comment. Counsel for Eisenberg, Anthony Katz, argued that the regulations were not meant to be transitional only, but were actually permanent.  He said if regulations were adopted, procedures set out in Section 7 (a)(b) and (c) of the Immigration Act had to be followed, even if it took a year.  According to Katz, Section 52 of the Act meant that the Minister could make regulations without consulting the Immigration Advisory Board if the Board had not yet been convened, constituted and put into operation.  It did not relieve him, however from other obligations, such as public comment and notice. The Constitutional Judges put it to Katz that his client had no greater interest than any other member of the public in contesting the constitutionality of the regulations.  Katz contended that his client had the right to act in the interest of the public if it was believed that the general public's rights were being invaded.  Chief Justice Arthur Chaskalson posed the question whether the new Act could function without the disputed regulations, since the old Act had been repealed.  He also pointed out that the old Act had caused several problems and that the Constitutional Court had on several occasions pointed out that the old Act was unconstitutional in several aspects.

Immigration regulations 'only transitional' (SABC, 20/05/2003) - The Constitutional Court heard today that the regulations pertaining to the new Immigration Act was only transitional and therefore did not require public notice and comment. The legal team representing Mangosuthu Buthelezi, Home Affairs Minister, submitted that Section 52 of the act only required him to adopt regulations and publish them in the Government Gazette. Only after the Immigration Advisory Board had been convened would permanent regulations be drafted. However, several of the nine judges questioned this, pointing out that no provision was made for a deadline or expiry date. David Unterholter, Buthelezi's advocate, said the new regulations were vital to the implementation of the new Immigration Act as it differed vastly from the old Aliens Control Act. "The architecture of the new act is so different from the old act that the old regulations cannot be conjoined to it in any way," he said. Advocate Andrew Tochten, also for Home Affairs, said the new regulations did not adversely effect public rights. He said the founding affidavit lodged by Gary Eisenberg, the Cape Town immigration lawyer 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. He said once the new immigration regime was up and running, the public would have the right to comment.

Buthelezi asked to withdraw court appeal (Sunday Times, 20/05/2003) - The African National Congress urged Home Affairs Minister Mangosuthu Buthelezi to withdraw an appeal by his department against a court ruling striking down new immigration regulations. In the National Assembly during debate on the minister's budget vote, the ANC chairman of Parliament's home affairs portfolio committee, Patrick Chauke, said the appeal was a waste of money. "I appeal to (the minister) to instruct the department to withdraw the appeal in the Supreme Court of Appeal and the Constitutional Court because the department is now complying with the act and there is no need to continue with the appeal as this will be a waste of time and government resources." This was particularly the case with the inauguration of the immigration advisory board, a key principle in the Immigration Act, he said. The department is appealing against a ruling of the full bench of the Cape Town High Court that the new immigration regulations are invalid and unconstitutional. In his speech earlier in the debate, Buthelezi said the board was fully operational. "With this step having been taken, the new system of migration control has now been launched. It will take time before the new system will reach full maturity in what remains an always fluid field of policy formulation, inherently characterised by tensions and informal conflicts," he said. Buthelezi warned that the cost of the mooted national identification system was set to skyrocket after an analysis of the project showed some of the technological solutions and project features being pursued were not correct. He said that addressing this problem would have "massive repercussions for the finances of the state". The project Home Affairs National Identification System was initially expected to cost the state R1,5-billion. ANC MPs attacked the department for slow implementation of the project that was first approved by the cabinet in 1996, and criticised it on almost every front for its lack of achievement. Buthelezi said the project's costs would be higher to cater for unanticipated problems. "New technology has emerged which will enable us to reduce the costs for identity cards and employ microchips only in respect of certain segments of the population which may need them or wish to have them. In other respects, high-density bar codes can achieve all the intended goals of a secure identity card," he said. Chauke criticised the project's long delays and asked Buthelezi and Deputy Minister Nosiviwe Mapisa-Nqakula "to whip their staff in the department to speed up the implementation". Only 700,000 identity applications had been captured on the system so far with an average of 6,000 intakes of application records received daily.

Concourt reserves judgement on immigration regulations (Johannesburg, Sapa, 20/05/2003) - The Constitutional Court on Tuesday reserved judgment on the issue whether Home Affairs Minister Mangosuthu Buthelezi will be granted leave to appeal a decision by the Cape High Court on the constitutionality of new Immigration Act regulations. This follows a decision by the Cape High Court that Buthelezi had acted unconstitutionally when he adopted the regulations pertaining to the new Immigration Act without public notice and comment. The legal team for the minister argued that the regulations were only transitional and therefore did not require public notice and comment. Advocate David Unterhalter, SC, submitted that Section 52 of the act only required him to adopt regulations and publish them in the Government Gazette. Only after the Immigration Advisory Board had been convened would permanent regulations be drafted. These regulations would be subject to Section 7 of the new act that provided for a procedure of notice and comment from the public. However, several of the nine judges questioned this, pointing out that no provision was made for a deadline or expiry date. Unterhalter said the new regulations were vital to the implementation of the new Immigration Act as it differed vastly from the old Aliens Control Act. "The architecture of the new act is so different from the old act that the old regulations cannot be conjoined to it in any way," he said. Advocate Andrew Tuchten, SC, also for Home Affairs, said the new regulations did not adversely effect public rights. He said the founding affidavit, lodged by Cape Town immigration lawyer Gary 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. Tuchten also said that the Promotion of Administrative Justice Act (PAJA) did not apply to the adopting of the regulations. He said the Act was promulgated to protect the public's direct rights "on the ground", for example in a case where a dam is built in a certain area.

When delegated legislation is made, the PAJA did not apply. He said drawing up and adopting regulations was not an administrative function. Imposing them was administrative. He said that once the new immigration regime was up and running,
the public would have the right to comment. Counsel for Eisenberg, Anthony Katz, argued that the regulations were not meant to be transitional only, but were actually permanent. He said if regulations were adopted, procedures set out in Section 7 (a)(b) and (c) of the Immigration Act had to be followed, even if it took a year. According to Katz, Section 52 of the Act meant that the Minister could make regulations without consulting the Immigration Advisory Board if the Board had not yet been convened, constituted and put into operation. It did not relieve him, however from other obligations, such as public comment and notice. The Constitutional Judges put it to Katz that his client had no greater interest than any other member of the public in contesting the constitutionality of the regulations. Katz contended that his client had the right to act in the interest of the public if it was believed that the general public's rights were being invaded. Chief Justice Arthur Chaskalson posed the question whether the new Act could function without the disputed regulations, since the old Act had been repealed. He also pointed out that the old Act had caused several problems and that the Constitutional Court had on several occasions pointed out that the old Act was unconstitutional in several aspects. On the issue of the costs of the case, Katz argued that it would be fair to award costs against his client if it was found that the case was frivolous and vexatious. He said however that two actions in the Cape High Court had been successful and that proved that the case was not frivolous. He also said if costs were awarded against his client it would discourage similar legal actions which were in the general public's interest.

Home Affairs before highest court on immigration (SABC, 20/05/2003) - The Constitutional Court is hearing an application by Mangosuthu Buthelezi, the Home Affairs Minister, for leave to appeal against a high court ruling striking down sections of the Immigration Act. The Cape High Court last month found that when the act was formulated, the minister failed to notify and invite public comment as required by law. Buthelezi's lawyers argue that regulations under the act are only temporary, because the Immigration Advisory Board has not yet been set up. The board was inaugurated yesterday. The ANC has urged Buthelezi to withdraw the appeal, saying it was a waste of money.

Immigration appeals a waste of money: ANC (SABC, 19/05/2003) - The ANC has urged Mangosuthu Buthelezi, the Home Affairs Minister, to withdraw an appeal by his department against a court ruling striking down new immigration regulations. Speaking in the National Assembly during debate on the minister's budget vote, Patrick Chauke, the ANC chairperson of Parliament's home affairs portfolio committee, aid the appeal was a waste of money. "I appeal to (the minister)...to instruct the department to withdraw the appeal in the Supreme Court of Appeal and the Constitutional Court, because the department is now complying with the act, and there is no need to continue with the appeal as this will be a waste of time and government resources." This was particularly the case with the inauguration earlier today of the immigration advisory board, a key principle in the Immigration Act, he said. The department of home affairs is appealing against a ruling of a full bench of the Cape High Court that the new immigration regulations are invalid and unconstitutional. In his speech earlier in the debate, Buthelezi said the immigration advisory board was fully operational. "With this step having been taken the new system of migration control has now been launched. "It will take time before the new system will reach its full maturity in what remains an always fluid field of policy formulation, inherently characterised by tensions and informal conflicts," he said.

Two sections of new Immigration Act invalid, says Judge (Pretoria, Sapa, 22/04/2003) - In the latest court ruling against Home Affairs Minister Mangosuthu Buthelezi, the Pretoria High Court on Tuesday, declared two sections of the new Immigration Act unconstitutional and invalid. Judge Ben du Plessis ruled that section 34(8) of the Immigration Act of 2002, did not provide for procedural protection of persons held on a ship and was therefore unconstitutional, but suspended the order for a year. He further ruled that the wording of section 34(2), dealing with persons held on a ship, was unconstitutional. The judge, however, refused an application by Lawyers for Human Rights to declare sections 34(1), 34(1)(d) and 34(9) of the Act unconstitutional as well. The sections deal with among other things the arrest and deportation of illegal foreigners without a warrant and their detention without a trial. The deportation of illegal foreigners was a legitimate governmental object internationally recognised, the Judge said. The arrest of foreigners for the purpose of deportation was a just cause for the deprivation of freedom by means of arrest. It was also a rational way of attaining the legitimate governmental object of deporting illegal foreigners. The Act did not provide in section 34(1) for the arrest of persons other than those who were in fact illegal foreigners. The possibility of the section rendering lawful the deprivation of the freedom of other persons did not arise.  "I conclude that the power to arrest in terms of section 34(1) of the Act does not limit the substantive aspect of the right to
personal freedom," the Judge said. He said illegal foreigners who were detained had the right to request at any time that their detention be confirmed by a warrant of a court. They could also not be detained without a court order for longer than 30 days. To complaints that the circumstances under which illegal foreigners were detained were not in accordance with their basic human rights, Du Plessis said this was not because the Act allowed it, but because the Act was not complied with. The judge found that LHR had the legal standing to bring the application as it genuinely acted in the public interest.

The very reason for its existence is a concern for human rights. In view of the difficulties facing foreigners, particularly illegal foreigners, whose rights may be infringed, it is in the public interest that an organisation such as LHR acts as public conscience to protect the rights of foreigners, he said. Concerning section 34(8), the Judge said the powers given to immigration officers in the sub-section were arbitrary. Persons who were not illegal foreigners but have been notified that they were or whom an immigration officer had declared to be illegal, could be detained on ships under this section even in cases where there was not even a reasonable suspicion that they were illegal foreigners. The Cape High Court in March declared regulations accompanying the Act invalid and unconstitutional because Buthelezi did not follow essential notice and comment procedures before gazetting the regulations. Although Buthelezi was refused leave to appeal against the ruling and the court ordered that previous legislation should remain in place.  The Department of Home Affairs will seek leave to appeal the ruling in the Constitutional Court next month.

Confusion over immigration law (IOL, 22/04/2003) - Illegal immigrants may have been arrested unlawfully because the police have not been told that the new Immigration Act has come into operation. This problem recently came to the attention of immigration lawyers after they were asked by police officers what they were supposed to do. Lawyers for Human Rights has written to the minister of justice requesting clarification. Captain Ronnie Naidoo said no one had told police the new Immigration Act had come into operation. Home affairs spokesman Leslie Mashokwe said he could not speak for the police, but they should have known the new act had come into operation.  Immigration lawyers found themselves tangled in red tape as both the Government Printer and the various home affairs offices were caught on the wrong foot when the law came into force. Chaos also seems to be reigning at the country's ports of entry. Johannesburg immigration lawyer Chris Watters said he had a client who came to the airport who had the words "Aliens Control Act" scratched out on his papers and changed to "Immigration Act". "Can this be a legal permit?" Watters asked. Because the new act does not make provision for applications for special exemption to be lodged, a final-year student from the Democratic Republic of Congo had been unable to study or attend classes since her study permit expired. Even though it was recommended that she be given a certificate of special exemption, the director-general signed it only after the new law kicked in. Because transitional measures relate only to permits and not to certificates, she finds herself in limbo. The Law Society's spokesman on immigration, Julian Pokroy, said immigration lawyers were now faced with "incredibly complex and novel situations". "But we are trying to process what we have got." He said the Law Society had called on the Department of Home Affairs to start a campaign to inform people about the regulations under the new act. Pokroy also said he would be setting up the first website in the country where the elusive new forms will be available online. His website is at www.immigration-sa.co.za

Constitutional Court to hear Buthelezi's appeal (Mail & Guardian, 19/04/2003) - Home Affairs Minister Mangosuthu Buthelezi's application for leave to appeal a ruling striking down new immigration regulations will be heard by the Constitutional Court. The ruling was issued last month by a full bench of the Cape High Court, which found the regulations invalid and unconstitutional. The High Court judges refused Buthelezi leave to approach the Supreme Court of Appeal, and also issued a certificate saying they did not believe the Constitutional Court would come to a different conclusion. Buthelezi nevertheless lodged papers with the Constitutional Court, and on Thursday Chief Justice Arthur Chaskalson directed that the application for leave to appeal would be heard on May 20. He said Buthelezi should file written argument by May 13, which should be comprehensive enough for the court to dispose of the application without having to hear further argument should leave to appeal be granted. The original High Court application against the regulations was brought by Cape Town specialist immigration lawyer Gary Eisenberg. The effect of Buthelezi filing notice of his intention to seek leave to appeal was to suspend the High Court ruling, so that the regulations, along with the new Immigration Act, are currently in force and being applied by the department of home affairs.

State must test ruling, says Buthelezi (Business Day, 16/04/2003) - Government needed to test a Cape Town High Court judgment which would allow anyone to challenge state actions even when not directly affected by them, Home Affairs Minister Mangosuthu Buthelezi said yesterday. He briefed Parliament's home affairs committee on developments around the Immigration Act and its regulations which were declared invalid by the high court because the department had not followed the public consultation requirements of the act. "We as the government have a very important concern of national interest in determining whether the Cape High Court's ruling on the issue of locus standi was correct as such ruling has potentially immense consequences for our legal system and our government." He said that under such a ruling anyone would have the power to go to court to challenge the lawfulness of the action of an organ of the state when a law, rather than a provision of the bill of rights, is alleged to have been contravened, even when the applicant has not been directly damaged or specifically affected by such decision. Buthelezi said he had received senior counsel opinion that the court could have acted beyond its powers when it suspended the legislation which had been adopted by Parliament and promulgated by the president. "If correct, the court's order preventing the Immigration Act from coming into force would be a nullity". Buthelezi said he would be publishing the draft regulations for the second round of public comment shortly. They would also be tabled in Parliament. He said he intended to pursue the process of public consultation on the regulation as quickly as possible. Meanwhile, important electoral legislation setting the framework and rules for next year's elections will probably be presented to Parliament by the justice and constitutional affairs department after June, acting home affairs director general Ivan Lambinon told the committee.

Immigration Act causing chaos (News 24, 14/04/2003) - Confusion and controversy reign with the country's migration controls and, "strictly speaking, every single overseas visitor - including Super 12 rugby players - entering South Africa is here illegally. The new Immigration Act and accompanying regulations were hurriedly tabled by Home Affairs Minister Mangosuthu Buthelezi last Monday night. However, a senior lawyer says every move made by the department in accordance with the new legislation is null and void. The reason is that in March the Cape High Court found the regulations to be unconstitutional. Buthelezi's legal team appealed to both the Appeal Court and the Constitutional Court, but appeals were turned down. In practice, the new legislation cannot be enforced without the regulations. Buthelezi's lawyers sent an urgent fax for leave to appeal to the Constitutional Court to counter the Cape court's ruling, but registrar Martie Stander refused to accept the appeal by fax. However, Buthelezi tabled the new legislation and regulations on Monday night a week ago, apparently under the impression that everything was in order. On Friday, the department referred Beeld to a statement indicating that the new legislation and regulations had been tabled and apologised that it had happened "without prior notification". In the meantime, a second urgent leave-to-appeal application was sent to the Constitutional Court on Tuesday last week, but it was again unacceptable. The problems apparently were rectified on Thursday, said Stander, but Mr Chief Justice Arthur Chaskalson had not indicated by Friday afternoon if he had found the documents in order and if the application for leave to appeal was acceptable in the present form. "This meant that no application for leave to appeal had been accepted legally and the introduction of the regulations on Monday a week ago was nullified because it was found to be unconstitutional by the Cape High Court. The senior lawyer said: "In practice, it means that everyone who has arrived in South Africa since Monday last week - from business to sports people - is here illegally. "Until the application for leave to appeal is accepted by the Constitutional Court, the Immigration Act and the regulations cannot be implemented." Lawyer A Katz, who was successful in the Cape Supreme Court with the application to have the regulations declared unconstitutional, did not want to comment yesterday afternoon because the case was sub judice.

Immigration Act bad for investment (Business Report, 14/04/2003) - The business community, and the property industry in particular, have reacted with concern after the new Immigration Act and its regulations, which make it practically impossible for all but the most well-heeled foreign nationals to take up residence in South Africa, came into effect at 6pm on Monday.  This is the result of the signing by the Minister of Home Affairs, Mangosuthu Buthelezi, of a notice to appeal against the High Court's setting aside of the act in the Constitutional Court.This despite the fact that the minister's application in the High Court for leave to appeal to the Appeals Court was denied by a full bench of judges. The new act requires applicants to meet extremely high financial qualifications and to pay extraordinary application fees. Its regulations, and their coming into effect on Monday, have shocked the business community, property agencies and owners as well as prospective migrants to South Africa. Until Monday the rather unusual situation was that the new act applied but its regulations did not, as the High Court recently ruled that the regulations of the previous Aliens Control Act would apply. Ian Slot, chairman of Seeff Western Cape Licensees, said: "The current state of affairs in which the act and its regulations are in effect as a result of a technicality due to the minister's notice to appeal, is unacceptable and untenable. "It seems to be in migrants' best interests to not apply for residence until the Constitutional Court has ruled on the matter," Slot said. "We agree with High Court judges John Hlope and Deon van Zyl that it is highly unlikely that the Constitutional Court will rule differently to the High Court in its setting aside of the act's regulations. "Cape Town law firm Eisenberg & Associates successfully challenged the act and its regulations twice in the High Court. The court found the regulations to be invalid and unconstitutional. "It was successfully proved that the minister did not allow for any public participation in the formulation of the regulations. "The correct procedures under which regulations are required to be made were also not complied with. "We find the department's conduct in this matter extremely disappointing," Slot said. "The minister has, through a technical point, succeeded in bringing into effect an act and regulations which have twice been set aside by the High Court.

"This begs the question: Does the minister really believe that there are legitimate grounds for appealing against the setting aside of the act? "Or was his notice to appeal simply a mechanism to enforce his will regardless, and to bring into effect an invalid and unconstitutional act and regulations? "Is this not a waste of the courts' time? Does it not also undermine parliament and democratic processes? Isn't the minister's conduct sending out the wrong message? Is this really how government wants to spend the extra money being collected by SARS and Finance Minister Trevor Manuel? "It has been our view that the department should take the act's regulations, which are fundamentally flawed and its criteria unworkable, back to the drawing board," Slot said. "The minister's special advisor, Mario Ambrosini, said on Monday that this 'reform' would serve South Africa's interests. How does this act constitute reform? It undermines South Africa's set goals for direct foreign investment. "When foreign nationals purchase property in South Africa, they make a strong commitment to this country's future. "This act, as well as key aspects of the capital gains tax provisions, adversely affect South African as well as foreign buyers and investors. They need to be reconsidered or challenged, before they do further damage to South Africa's ability to attract much-needed foreign capital." According to Slot, the regulations at first required financially independent foreign nationals (those without pension-type income) to prove a net worth of R20 million as well as to pay an application fee of R100 000 to obtain permanent residence in South Africa. "Retired foreign nationals seeking permanent residence from 12 March would have been required to prove either a pension-type income of at least R25 000 per month or a R15 million net worth," he said. "In March, this was then changed. The regulations now require a proven net worth of R12 million providing an income of R15 000 per month." Alternatively, applicants must prove either a pension, irrevocable annuity or pension plan of at least R20 000 per month, as opposed to the earlier R25 000. "Making income or wealth such an important yardstick by which to determine the contribution of prospective South African residents is questionable," Slot said. "It concerns us that government appears once again to have embarked upon legislation which has serious ramifications for present and potential property owners without adequately engaging both the public and the property industry in discussions about the effect of these proposed policies. "Surely the hallmark of an effective democracy is public participation on key decisions based on informed and open public debate?"

Buthelezi apologizes for hasty implementation of immigration regulations (IOL, 09/04/2003) - As the department of home affairs opened their doors to a new system of migration control yesterday, confusion and controversy reigned once again. "It is an embarrassment," one immigration lawyer said while allegations were made that the legal team for the department of home affairs had not filed a pivotal application to the Constitutional Court on Monday, even though they said that they had. A month ago two judges of the Cape High Court ruled that the immigration regulations were unconstitutional because they had not been tabled for public comment. The judges on Monday initially refused to give home affairs leave to appeal against this judgment. Their ruling was, however, suspended on Monday afternoon when the legal team for the department of home affairs claimed to have filed an application for leave to appeal at the Constitutional Court. Because the court had accepted that home affairs had properly filed this application for leave to appeal, they dismissed another late night application by leading immigration lawyer Gary Eisenberg to stop the Immigration Act from coming into operation.  Yesterday it seemed, however, that home affairs' legal team attempted on Monday afternoon to file the Constitutional Court application by fax but this was unacceptable to the court which expects 25 copies of the papers to be filed in person. Eventually their application was then only filed at the Constitutional Court at around 1pm yesterday. Immigration lawyer Chris Watters said that "this is extremely embarrassing for the country. It is not inconceivable that someone is going to get hurt or fed-up". He said that by yesterday the Johannesburg's home affairs staff had not heard what was going on. One official said that they did not have all the forms. Another said that they were still busy with decisions taken under the old Aliens Control Act, Watters said. Immigration lawyer and chairman of the Law Society's immigration committee Julian Pokroy said they had written to home affairs minister Mangosuthu Buthelezi telling him that there was confusion and asking him what to do. Buthelezi had, after being ordered to do so by the Cape High Court, tabled his regulations for public comment. "Our most pressing problem is what will happen if Buthelezi's appeal does not succeed. We will have an Immigration Act without regulations. We could be faced with a situation where nobody would be allowed to exit or enter the country." Buthelezi apologised in a statement for the inconvenience that the hasty implementation of the immigration regulations might cause. "The new system has come into force without prior notice, which is bound to exacerbate the unavoidable teething problems which are necessarily associated with the launching of any new administrative reform," Buthelezi said. "We regret any inconvenience." 

Immigration Act: New Controversy (News 24, 08/04/2003) - 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.

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.

Buthelezi to appeal to Constitutional Court over immigration law delays (Business, 08/04/2003) - Lawyers battled into the night yesterday in the Cape Town High Court over SA's troubled immigration legislation after Home Affairs Minister Mangosuthu Buthelezi lodged notice with the Constitutional Court of his intention to seek leave to appeal. An appeal would suspend last month's high court judgment, which struck down key regulations, ironically making it possible for the new act, the Immigration Act, to come into force with its regulations until a decision was made on the appeal or the appeal was heard. As a result, immigration lawyer Gary Eisenberg, who brought the challenge in the high court, applied yesterday for the court to place in operation the order despite any application to the Constitutional Court. The high court yesterday refused the home affairs department permission to appeal against the ruling on March 11 by Cape Judge President John Hlope and Judge Deon van Zyl that regulations which were supposed to come into effect at midnight that night along with the new Immigration Act, were ultra vires and unconstitutional. The ruling was suspended until yesterday pending a decision on the leave to appeal. Up to that point that new act was in force with the Aliens Control Act. The Immigration Bill has been eight years in the making and has had a long and bumpy history. The regulations to accompany the act, published on November 25 last year, were found to be "unlawful and inconsistent with the constitution of the Republic of SA" and therefore invalid by the Cape Town High Court on February 17 this year. The court said the immigration regulations could not be considered to be in force as President Thabo Mbeki had not yet determined a date for them to come into effect by publication in the Government Gazette. This was corrected and the regulations were published in the gazette. On February 25 a state law adviser cautioned the National Assembly's home affairs committee that the new immigration regulations necessary for the new Immigration Act to come into force on March 12, might be open to a successful court challenge as they did not appear to be transitional.

The department had insisted the regulations were a transitional mechanism and would be replaced in terms of Section 7 of the Act, which requires an advisory immigration board be set up within 90 days of the legislation coming into force. On March 11, a day before the bill was to come into effect, the Cape Town High Court declared the regulations invalid and unconstitutional because Buthelezi failed to invite public comment prior to promulgation of the new regulations. The act has been broadly criticised. For example the justice department did not support the idea of an independent immigration court, and there has been opposition to the 2% levy placed on the salaries of foreigners. There are some, however, who believe it is a better piece of legislation than the present act, which offers only one class of work permit instead of the four outlined in the new act. According to Deloitte & Touche Immigration manager Lino de Ponte, the new act was promulgated in the middle of last year and has been operating with the regulations of the Aliens Control Act.

New immigration laws enacted (Irin, 08/04/2003) - South Africa's new Immigration Act has left too much discretion to police and immigration officials, and criminalised ordinary job seekers from neighbouring countries, the NGO Lawyers for Human Rights (LHR) said on Tuesday. After several delays, amendments and last minute court challenges, the legislation replacing the Aliens Control Act was finally enacted on Monday evening. Although the main thrust of the objections to the act were that it placed very high financial requirements on immigrants who wanted to retire in South Africa, and did not contain enough investor-friendly clauses, LHR was concerned about the impact on alleged illegal immigrants, small traders and job seekers. "The new act's main focus is on big business and large corporations, and facilitating the movement of international professionals. There is no adequate provision for the majority of people who need to enter South Africa," Jacob van Garderen, coordinator of LHR in South Africa, told IRIN on Tuesday. Instead of creating user-friendly mechanisms, the new act made it more difficult for people to apply for work permits, and for entrepreneurs to employ skilled people, he explained. It also didn't deal adequately with certain categories of migrants like the significant number of neighbouring nationals employed for generations in agriculture, mining and small businesses. Nor did it make provision for people like Zimbabwean craft traders who needed to enter the country for a few weeks, or casual labourers. "It criminalises a large number of migrants who would otherwise have entered South Africa legally, and places an unacceptably high burden on enforcement agencies like the police and the immigration authorities," Van Garderen said. "If this movement was regulated it would give the state the opportunity to know who is entering the country." The SA Human Rights Commission (SAHRC) agreed, adding that the act gave arbitrary powers of "search and seize" if there were reasonable grounds a person was not South African. The language of the act, although meant to curb xenophobia, could also promote it through wording that gave the impression South Africa was being "bombarded by foreigners", SAHRC deputy chairwoman, Zonke Majodina, said. LHR was particularly concerned about the immigration enforcement mechanisms of the act, which left an "unacceptable degree of discretion" to the police and immigration officials, and involved private companies in detention and deportation. According to the act, alleged illegal immigrants may be detained for 30 days without a warrant before being detained, after which an extension ordered by a judge is required. This would give detainees the opportunity to place their case before a court and possibly have the warrant of detention set aside. However, Van Garderen said, not many detainees knew this and were held for "unacceptably long periods". Refugees and asylum seekers would continue to refer to the separate South African Refugees Act and would not immediately be affected by the new Immigration Act. The new act makes provision for an Immigration Court, which will eventually replace the Refugees Appeal Board. The departments of Justice and Home Affairs are still debating the jurisdiction of the proposed court.

Chaos as Immigration Act comes into force (IOL, 08/04/2003) - The new Immigration Act, along with regulations which were declared invalid and unconstitutional by the Cape High Court last month, have come into force. This followed a marathon legal battle, which Home Affairs Minister Mangosuthu Buthelezi still hopes to continue in the Constitutional Court. On February 17, leading immigration lawyer Gary Eisenberg secured a Cape High Court ruling declaring the immigration regulations unconstitutional because no special proclamation on the regulations had been published in the Government Gazette.  The regulations were then supposed to come into force at midnight on March 11, but Eisenberg secured a second ruling from a full bench of the High Court that they were unlawful. Eisenberg had filed the second application because Buthelezi - who claimed they were only interim regulations - had refused to table them for public comment. This would have meant that at midnight the new act would have come into force along with unrelated regulations issued under its predecessor, the Aliens Control Act - a situation which would have led to chaos at immigration control points. However, with only hours to go, Judge Deon van Zyl issued an order that the old act remain in force, along with the old regulations, until 6pm yesterday. Back in court yesterday morning, Van Zyl and Judge President John Hlophe rejected a formal application by Buthelezi to take his case to the Supreme Court of Appeal in Bloemfontein. They also issued a "negative certificate" saying they believed there was no prospect of the Constitutional Court reversing their decision either - although this does not preclude Buthelezi from approaching it - and ordered the minister to pay Eisenberg's costs. The ruling left Home Affairs staff who had been listening to the legal arguments confused about which act and which regulations they would be administering from 6pm. One senior official approached Eisenberg's advocate Anton Katz in the street outside the court afterwards, and said: "Mr Katz, can I ask you a simple question. Where the hell are we?" The question was resolved after a fashion yesterday afternoon when Buthelezi's legal representatives filed notice with the Constitutional Court of their intention to seek leave to appeal. Buthelezi's special adviser, Mario Ambrosini, asked if he was pleased by the ruling, said: "We hope that all the customers and service recipients will be pleased. We did it for them."

Immigration chaos looming? (News 24, 07/04/2003) - The prospect of immigration chaos loomed anew on Monday when Home Affairs Minister Mangosuthu Buthelezi was refused permission to appeal to the Supreme Court of Appeal against a ruling striking down key regulations. The effect of the refusal, by a full bench of the Cape High Court, is that at one minute past 18:00 on Monday, the new Immigration Act will come into force coupled with outdated regulations from the old Aliens Control Act. Immigration experts say this will lead to chaos at South Africa's ports of entry. However, government lawyers could still avert disaster by applying to the Constitutional Court before 18:00 for leave to appeal. Monday's ruling follows a finding on March 11 by Cape Judge President John Holphe and Judge Deon van Zyl that the regulations supposed to come into force at midnight that night, along with the new Immigration Act, were invalid and unconstitutional. The challenge to the regulations was brought by immigration lawyer Gary Eisenberg. The judges' ruling would have meant that the new act came into force with the old regulations, which bear no relation to the legislation. But in a second decision late that night, Van Zyl ordered that both the act and the regulations be suspended until 18:00 on Monday, pending a decision on leave to appeal. He and Hlophe refused Buthelezi leave to go to the Supreme Court of Appeal in Bloemfontein. They also issued what is known as a "negative certificate" saying they believed there was no prospect of the Constitutional Court reversing their decision, and ordered him to pay Eisenberg's costs. A negative certificate does not preclude Buthelezi from going to the Constitutional Court. However, his legal team appeared on Monday morning to have been caught by surprise by the realisation that they faced a deadline. Home Affairs officials were no less concerned. One senior official, who had been listening to the case from the public gallery, approached Eisenberg's advocate Anton Katz in the street outside the court afterwards, and said: "Mr Katz, can I ask you a simple question. Where the hell are we?" Eisenberg is expected to oppose any bid by Buthelezi to seek Constitutional Court leave to appeal.

Court tells Buthelezi to get house in order (IOL, 28/03/2003) - After twice declaring his controversial immigration regulations unconstitutional, the Cape High Court has now ordered Home Affairs Minister Mangosuthu Buthelezi to table them for public comment. In a scathing judgment delivered on Thursday, Judge Deon van Zyl told the embattled Buthelezi that it was time to get his department in order. Both times that the immigration regulations were declared unconstitutional, Buthelezi was also ordered to foot the bill for some of the legal costs. "While the conception of the (Immigration) Act was relatively easy, its birth as a fully-fledged statute... has been fraught with difficulties. This may be attributed to over-hastiness to get the act on track and, perhaps, to old-fashioned bureaucratic bungling. "One may only hope that, after having suffered two unsuccessful attempts at publishing immigration regulations, which have been decisively struck down by this court, Buthelezi will insist that his department be brought in order to prevent a repetition," said Van Zyl. Both applications against the immigration regulations were brought by leading immigration lawyer Gary Eisenberg, of Eisenberg & Associates.  An order suspending the coming into operation of the act has been extended to April 7, when an application for leave to appeal will be heard. "The public must undoubtedly have the right to comment on intended and draft regulations before they are brought into force," said Van Zyl. "If this were not so, the minister would have the unfettered right to make interim regulations of whatever nature... regardless of the democratic right of people to give their input. It would be in conflict with the most basic, fundamental and eternal values underlying our constitution and required by the rule of law and the precepts of legality," he said.

Buthelezi comments on Immigration Act court case (Business Day, 19/03/2003) - Your coverage of the Cape Town High Court litigation about the immigration regulations is inaccurate. Your editorial (Time for Mbeki to act, March 13) recognises that the issue was not the contents of the regulations, but the procedure by which they were adopted. Your article (New setback for Buthelezi's migrant rules, March 12) states that we "received a warning from the state law adviser" of the portfolio committee that the regulations could be challenged in court. Moreover, the editorial states that there is little argument about the correctness of the court decision. I never criticise court decisions and do not intend to do so now. I acted not only on the basis of my department's advice but I also instructed that such advice be independently verified by senior counsel opinion, as I wished to be sure on how to proceed. Moreover, the portfolio committee's legal adviser's written opinion reached the same conclusion and he too independently held that I made the regulations in terms of the correct procedure. Furthermore, in their affidavit in the case, both the speaker and chairperson of the National Council of Provinces testified that their understanding of the parliamentary intention was that the procedure I used was the correct one. It is not true, as reported in some newspapers, that a court has previously ruled on the validity of the regulations. Therefore, with the exception of the applicant's view on the matter, I never had any legal opinion before me to suggest that the several legal opinions authoritatively expressed on the matter were incorrect. In the end it is the court system which must determine the correct interpretation of the law.

My legal representatives appealed the decision of the Cape Town High Court. Yet, I have begun complying with it and I commenced the process to adopt the regulations in terms of the procedure indicated by such court. It was always my intention that eventually this procedure should be utilised for the final regulations. The procedure I used was meant only to apply to regulations made during the transition. The only purpose of adopting such procedure was that of implementing the Immigration Act as soon as possible to respond to public concerns and customers' expectations. Your editorial incorrectly says that the regionalisation of immigration control has been "sneaked" into the regulations, or that it has anything to do with the possible difference of "political philosophy" between centralisation ascribed to the African National Congress and federalism ascribed to the Inkatha Freedom Party. This element has been a constant throughout the policy formulation in this field. It has got nothing to do with federalism but is pure administrative decentralisation of the same type which characterise the labour, safety and security and welfare departments, and other organs of state in co-ordination with which migration control needs to be performed on the ground. This type of decentralisation was spelled out in the cabinet-approved White Paper and in the cabinet-approved Immigration Bill. The matter has got nothing to do with politics. Moreover, when the bill was brought to Parliament, the portfolio committee noticed that the relevant provisions did not belong in the bill but had to be placed in regulations, which is exactly what I did, not for the sake of politics but for good administration.
Mangosuthu Buthelezi, MP
Home Affairs Minister

Suspension of immigration law extended (IOL, 18/03/2003) - A Cape High Court judge on Monday extended the suspension of the new Immigration Act and its regulations to April 7. The regulations, which were supposed to have come into force last Wednesday, were put on hold by an 11th-hour ruling on Tuesday night, following a finding by the court that they were unconstitutional. Monday's extension was by agreement between the legal teams acting for Home Affairs Minister Mangosuthu Buthelezi and immigration lawyer Gary Eisenberg. Judge Deon van Zyl said the court would sit on April 7 to hear argument in Buthelezi's application for leave to appeal. The present Aliens Control Act, supposed to have been replaced by the new law, would continue till then. Van Zyl and Cape Judge President John Hlophe expect to deliver their written judgment in two weeks.  Buthelezi's adviser Mario Ambrosini said Home Affairs had already begun the process of bringing the regulations in line with the court's ruling. However, the minister would still appeal. "The minister's intention is just to bring the new system of immigration control into force and effect as soon as possible, and will pursue all avenues to that end," he said. Eisenberg said the two parties could never have come to any agreement other than an extension of the suspension. "What else could we do? This is the only way of preserving order. There's no alternative." There had been fears of chaos at ports of entry if the judges' original ruling - which would have meant a new immigration act operating with old regulations - had stood unqualified.

Immigration Bill still on ice (Mail & Guardian, 18/03/2003) - A Cape High Court judge on Monday extended the suspension of the new Immigration Act and its regulations, which were supposed to have come into force last Wednesday, to April 7. They were put on hold by an eleventh-hour ruling on Tuesday night, following a finding by the court that the regulations were invalid and unconstitutional. Monday's extension was by agreement between the legal teams acting for Home Affairs Minister Mangosuthu Buthelezi and the man who brought the challenge, immigration lawyer Gary Eisenberg. Judge Deon van Zyl said the court would sit at 9am on April 7 to hear argument in Buthelezi's application for leave to appeal against the original finding. The status quo -- the Aliens Control Act, supposed to have been replaced by the new law -- would continue till then. Van Zyl and Cape Judge President John Hlophe, who sat together to hear Eisenberg's application, expect to deliver their written judgment in two weeks. Buthelezi's adviser Mario Ambrosini said home affairs had already begun the process of bringing the regulations in line with the court's ruling. However the minister still intended to pursue the appeal. "The minister's intention is just to bring the new system of immigration control into force and effect as soon as possible, and will pursue all avenues to that end," he said. Eisenberg said the two parties could never have come to any agreement other than an extension of the suspension. "What else could we do? This is the only way of preserving order. There's no alternative."There had been fears of chaos at ports of entry if the judges' original ruling -- which would have meant a new immigration act operating with old regulations -- had stood unqualified.

Immigration Bill suspension prolonged (Cape Town, Sapa, 17/03/2003) - A Cape High Court judge on Monday extended the suspension of the new Immigration Act and its regulations, which were supposed to have come into force last Wednesday, to April 7. They were put on hold by an eleventh-hour ruling on Tuesday night, following a finding by the court that the regulations were invalid and unconstitutional. Monday's extension was by agreement between the legal teams acting for Home Affairs Minister Mangosuthu Buthelezi and the man who brought the challenge, immigration lawyer Gary Eisenberg. Judge Deon van Zyl said the court would sit at 9am on April 7 to hear argument in Buthelezi's application for leave to appeal against the original finding. The status quo - the Aliens Control Act, supposed to have been replaced by the new law - would continue till then.  Van Zyl and Cape Judge President John Hlophe, who sat together to hear Eisenberg's application, expect to deliver their written judgment in two weeks. Buthelezi's adviser Mario Ambrosini said home affairs had already begun the process of bringing the regulations in line with the court's ruling. However the minister still intended to pursue the appeal. "The minister's intention is just to bring the new system of immigration control into force and effect as soon as possible, and will pursue all avenues to that end," he said. Eisenberg said the two parties could never have come to any agreement other than an extension of the suspension. "What else could we do? This is the only way of preserving order. There's no alternative."  There had been fears of chaos at ports of entry if the judges' original ruling - which would have meant a new immigration act operating with od regulations - had stood unqualified. 

Immigration Act on backburner (The Star, 14/03/2003) - The government has agreed to postpone the implementation of the controversial Immigration Act until a host of technical difficulties with the law have been sorted out. The decision follows the Cape High Court ruling on Monday that the new law's regulations were unconstitutional. The government's legal team reached this agreement with leading immigration lawyer Gary Eisenberg on Wednesday and made it public yesterday. The Cape High Court rulings came after Eisenberg challenged their constitutionality. The main thrust of his challenge is that Minister of Home Affairs Mangosuthu Buthelezi is refusing to table the immigration regulations for public comment. Lawyers for Human Rights has challenged the constitutionality of some of the provisions of this act. Judgment on the issue has been reserved.

Monday deadline to act on immigration (Business Day, 14/03/2003) - Government has until 6pm on Monday to find a solution to the legal conundrum over implementation of the new Immigration Act after the Cape Town High Court this week declared the immigration regulations invalid and unconstitutional. Monday is the expiry date of a subsequent interim court order that had the effect of reinstating the old Aliens Control Act and its regulations while the home affairs department decided what to do. Unless the court extends this order there will be a legal vacuum, and the country will have no valid immigration legislation or regulations in place.  Home affairs acting director-general Ivan Lambinon said consultations were taking place with the department's lawyers.  One option would be to continue with the old Aliens Control Act and regulations until either the department's appeal against the court judgment was heard or the regulations were processed as laid down in the Immigration Act. The court ruled that the immigration regulations were invalid because the department had failed to allow the public to comment on them before they were gazetted.

Government explores options on immigration law (Cape Town, Sapa, 12/03/2003) - Lawyers acting for the Department of Home Affairs met President Thabo Mbeki's legal advisers on Wednesday to discuss their next move on the suspended Immigration Act and regulations, Home Affairs Minister Mangosuthu Buthelezi said. He confirmed to journalists at his office in Cape Town that his lawyers had noted an appeal against Tuesday's Cape High Court ruling that the regulations, due to come into force at Tuesday midnight, were invalid.  Late on Tuesday night a judge issued a second order, suspending the act itself until 6pm next Monday. Buthelezi said that on Wednesday morning he met senior counsel "also suggesting another route". "But the president was involved - they still had to discuss with the legal advisers of the president and they're going to report back to me," he said.  He said the discussion between the two sets of lawyers had in fact taken place, and he was waiting to hear the outcome.  The procedure that would be followed depended on how the presidency reacted. The Home Affairs department had been turned into a political football between the African National Congress and the Inkatha Freedom Party, the United Democratic Movement said on Wednesday.

Setback for Buthelezi's immigration legislation (The Star, 12/03/2003) - The controversial new Immigration Act has been stopped in its tracks, only hours before it was supposed to come into effect. The Cape High Court ruled yesterday afternoon that the new law's regulations were unconstitutional - the second time such a ruling has been made. The court ruled that the regulations of the old Aliens Control Act would have to be used in conjunction with the new law - a situation that commentators said could trip up the functioning of the Department of Home Affairs. However, at 9pm, only three hours before the Immigration Act was to take effect, counsel for Home Affairs appealed against the judgment. The court ruled that its earlier judgment not be automatically suspended pending the appeal, and also ordered that the Immigration Act be stopped from coming into operation before Monday at the earliest, allowing time for the matter to be resolved. Had it not been for the Home Affairs appeal, from today the department would have had to implement the Immigration Act using the old Aliens Control Act regulations - regulations that very often contradict or don't cover parts of the new act. Chris Watters, an attorney involved in immigration cases, said Aliens Control Act regulations do not make provision for the Department of Home Affairs to issue permits in terms of several international treaties. And there is a problem with the new forms needed to process applications under the new Immigration Act because the Aliens Control Act regulations make no mention of them. There are also two different definitions of business permits under the two acts. Lawyers predicted that this could create a situation where no applications could be submitted to Home Affairs until the chaos has been sorted out. They feared it might cause the Department of Home Affairs to shut down its services to foreigners. Yesterday's court battle followed a challenge against the regulations by leading immigration lawyer Gary Eisenberg. The main reason for the court's ruling was that Home Affairs Minister Mangosuthu Buthelezi has refused to table the regulations for public comment. Advocates Anton Katz and Johan de Waal, for Eisenberg, argued that the regulations could not come into operation before they had been tabled for public comment. Buthelezi opposed the application on the basis that he was allowed under the law to make "interim immigration regulations" until he had constituted an immigration advisory board. He said he did not have to get public comment on these interim regulations.

Bid to resolve immigration law dispute (Johannesburg, Sapa, 11/03/2003) - An eleventh-hour bid was underway on Tuesday night to resolve a legal stand-off over the controversial immigration regulations due to come into force at midnight. A full bench of the Cape High Court ruled on Tuesday that the regulations were invalid because Home Affairs Minister Mangosuthu Buthelezi had not followed notice and comment procedures.  Buthelezi was now desperately seeking leave to appeal the ruling, which when suspended will allow the regulations to at least provisionally come into force on Wednesday along with a new Immigration Act. However on Tuesday evening, one half of the two-judge full bench, Judge-President John Hlophe, was said to be unavailable to hear Buthelezi's application.  Buthelezi has reportedly said that having the law coming into force without the new regulations would be "catastrophic". The legal teams of the State and of Eisenberg and Associates - the immigration lawyers who brought the challenge - met Hlophe's colleague Judge Deon van Zyl in chambers for about an hour on Tuesday evening. They were expected to see him again on Tuesday night. The application followed a recent caution by the State Law Advisor to the National Assembly's home affairs committee, that the regulations could be successfully challenged in court. The regulations were gazetted last month, and are essential for the enforcement of the new Immigration Act.

Immigration Act suspended at last minute (Cape Town, Sapa, 11/03/2003) - A Cape High Court judge late on Tuesday night ordered that the new Immigration Act, the bulk of which was supposed to come into force at midnight, should be put on hold. The ruling by judge Deon van Zyl followed a day of drama in which he and Cape Judge President John Hlophe earlier declared that the regulations which accompany the act were invalid and unconstitutional.  Ruling in favour of an urgent application by immigration lawyers Eisenberg and Associates, they found Home Affairs Minister Mangosuthu Buthelezi had not followed essential notice and comment procedures before gazetting the regulations.  The ruling created what Buthelezi's ministry described as a "legal and factual impossibility", in which officials would have to apply the regulations of the old Aliens Control Act to the new legislation.  Buthelezi's legal team then lodged notice of his intention to appeal the ruling, which would have had the effect of automatically suspending the judges' earlier ruling on the new regulations. However, late on Tuesday night, as Eisenberg's lawyers threatened to seek an order effectively suspending the automatic suspension, Judge Van Zyl issued another order, this time that the old act and its regulations remain in force until 6pm on March 17.  He said this was an interim arrangement intended to give both parties the opportunity to approach the court for any further relief they required and "sort things out".

Judgement reserved in Aliens Control Act case (SABC, 04/03/2003) - Judgement has been reserved in the case in which Lawyers for Human Rights (LHR) have asked the Pretoria High Court to declare certain sections of the Aliens Control Act unconstitutional. According to the Act, immigration officials can detain foreign nationals pending their removal from South Africa without a warrant. The act also allows detention of up to 30 days without trial or appearing in court.  The human rights lawyers argue that the provisions of the act violate foreign national's fundamental right not to be detained without a trial. They say the act also infringes on their rights to equality, dignity and freedom. The lawyers are basing their case on alleged abuses at the Lindela Repatriation Centre in Krugersdorp. They argue that Home Affairs officials use the act on a daily basis to secure the arrest and indefinite detention without a warrant and without a trial of persons they sought to remove from South Africa. The Department of Home Affairs in turn says it has an obligation in the interest of its citizens to control entry into the country. The department says there is a real risk that person's entering the country may disappear if not arrested and detained pending an investigation. The removal of 126 Nigerian nationals, the Home Affairs department says, costs the state R1,2 million in 2000 and it cost about R10 000 to remove a prohibited person to China, with the costs of escorting the person doubling or tripling the amount.

Court challenge to Immigration Act (Dispatch Online, 04/03/2003) - The provisions of the Aliens Control Act and the new Immigration Act, which is to replace it later this month, are inconsistent with the Constitution and therefore invalid, the high court here heard yesterday. Advocate Anton Katz, appearing for Lawyers for Human Rights and land activist Ann Eveleth, argued before Judge Ben du Plessis that the court should set aside sections 34(1), 24(2), 34(8) and 34(9) of the Immigration Act. Katz said the provisions of the Immigration Act relating to the detention of foreign nationals provided no guidance of whatever nature to immigration officials or for that matter to other persons authorised to arrest and detain foreign nationals. The provisions of the Act were unreasonably broad, he said. LHR national director Vinodh Jaichand said in court papers Home Affairs officials used the Aliens Control Act daily to secure the arrest and indefinite detention without a warrant and without a trial of persons they sought to remove from South Africa. He said the Act and the new legislation passed by Parliament in May 2002 gave no guidelines about when, why and for how long a foreign national could be detained. The legislation violated fundamental rights such as the right not to be detained without a trial and access to courts. There was no reasonable justification offered for the deprivation or limitation of these rights, he said. Home Affairs assistant director Willem Voster in answering papers stressed that the state had an obligation, in the interests of its citizens, to control entry into the country by foreign nationals. A number of factors, such as poverty, political instability and wars, caused countless foreign nationals to descend on South Africa without first obtaining the necessary permits. A vast majority of these people did not enter the country through ports of entry. This made detection by the state extremely difficult. He said there were an estimated 4,2 million illegal foreign nationals in South Africa, but only 300 immigration officers. It was extremely expensive to remove a foreign national. The removal of 126 Nigerian nationals cost the state R1,2 million in 2000. Home Affairs Minister Mangosuthu Buthelezi said the new Immigration Act was passed by Parliament to bring the field of international migration control into compliance with the Constitution and to reflect the highest international standards of human rights protection. The application continues.

Presiding officers file affidavit in immigration case (Parliament, Sapa, 04/03/2003) - Parliament's presiding officers have filed an answering affidavit in the Cape High Court to explain the legislature's intention concerning the making of regulations in terms of the new Immigration Act. A local immigration attorney, Gary Eisenberg, is challenging the validity of the regulations gazetted by Home Affairs Minister Mangosuthu Buthelezi, and which are necessary for the new law to come into force on March 12. Cited as co-respondents are President Thabo Mbeki, his deputy Jacob Zuma, National Assembly Speaker Dr Frene Ginwala and National Council of Provinces Chairperson Naledi Pandor. On Tuesday, Ginwala told the rules committee she and Pandor had filed an affidavit on Monday, but they were not "supporting either side of the action". "It is simply a brief affidavit stating the intention of Parliament to create two regimes, one governed by section 52, the other by section seven (of the Immigration Act). "It is up to the courts to decide what is section 7 or 52. It has nothing to do with presiding officers." She and Pandor had taken the action "after a lot of thought", because it was important to defend Parliament's rights, Ginwala said. In the affidavit, they state that Parliament's intention was to empower Buthelezi to promulgate specific and limited regulations for a transitional period and until the Immigration Advisory Board was constituted. The legislation provide for two distinct regimes of regulation, one in terms of section seven and a transitional one in terms of section 52. The procedure followed by the department in drafting the regulations has also been at the centre of a row between MPs and officials. The state law adviser cautioned the National Assembly's home affairs committee last week that the new regulations might be open to a successful court challenge, as they did not appear to be transitional. In a legal opinion, Mr OB Kellner, the principal state law adviser, said he was concerned that "there does not seem to be any indication that the regulations are meant to be of a transitory nature". The department has insisted the regulations are a transitional mechanism, and will be replaced in terms of Section 7 of the Act, which requires an advisory immigration board be set up within 90 days of the legislation coming into force. A public consultation process will then kick in, including a role for Parliament in drafting new regulations. Kellner said regulation 1(2) and the comprehensive nature of the rest of the regulations tended to indicate the opposite of a transitional arrangement. "If this is so, one wonders what is left to regulate in terms of the procedure established by section seven once the board is in place. "It seems to me that the legislature would not have established the elaborate and transparent procedure for making regulations in terms of section 7 if meant to allow the department to make the bulk of the regulations envisaged in section 51 and 52. "I fear that a court would come to the same conclusion if the regulations were to be challenged," Kellner said. Kellner suggested a technical amendment to the regulations to avoid a successful court challenge.

High court reserves judgement on Aliens Control Act (Johannesburg, Sapa, 04/03/2003) - The Pretoria High Court reserved judgment on Tuesday in the Lawyers for Human Rights (LHR) application to have certain sections of the Aliens Control Act declared unconstitutional, SABC radio reported. The LHR has said the act, which allows immigration officials to detain foreigners pending their removal from South Africa without a warrant, violates fundamental rights to a trial for any person detained under the law. Home affairs argued that if people entering the country are not arrested and detained pending an investigation, there is a real risk they could disappear.

Aliens Control Act under the spotlight (SABC, 03/03/2003) - The government and the Lawyers for Human Rights (LHR) are squaring it up in the Pretoria High Court over the rights and the treatment of illegal aliens. The Aliens Act, according to the LHR, is inconsistent with the country's constitution. It gives government absolute powers to detain illegal immigrants indefinitely.  The Home Affairs Department is defending the matter. It accuses some countries of colluding with the immigrants to prevent what it terms large-scale repatriations. The LHR's application was sparked by the detention of Ann Francis Eveleth, a land activist, in Kempton Park last year. She was detained as a prohibited person for a week because her papers were not in order. Her detention was, however, later declared null and void by the Pretoria High Court.  The Human Rights lawyers say foreign nationals are vulnerable to unfair legal procedures, as they do not have a right of access to political power. Jacob van Garderen, of the Lawyers for Human Rights, says nothing can justify what he terms the grand scale infringement of human rights that is happening at the Lindela Repatriation Centre in Krugersdorp. In court papers lawyers for human rights say the Aliens Act is draconian. Van Garderen dismisses the fact that if their application is successful, it may render the State useless in terms of controlling illegal immigrants in the country. The government, in its defence, accuses countries like Nigeria, Pakistan, China and Bulgaria and other Eastern European countries of scheming with illegal immigrants to prevent large-scale return of foreign nationals to their countries. Leslie Mashokwe, the Home Affairs spokesperson, says foreign missions here take long to identify their nationals facing repatriation. Mashokwe denies that there are human rights abuses at Lindela. He says they will state their case before the court and wait for the outcome.

Immigration Act provisions invalid, PTA high court hears (Pretoria, Sapa, 03/03/2003) - The provisions of the Aliens Control Act and the new Immigration Act, which is to replace it later this month, are inconsistent with the Constitution and therefore invalid, the Pretoria High Court heard on Monday. Advocate Anton Katz, appearing for Lawyers for Human Rights and land activist Ann Eveleth, argued before judge Ben du Plessis that the court should set aside sections 34(1), 24(2), 34(8) and 34(9) of the Immigration Act. He said the provisions of the Immigration Act relating to the detention of foreign nationals provided no guidance of whatever nature to immigration officials or for that matter to other persons authorized to arrest and detain foreign nationals. The provisions of the Act were unreasonably broad, he said. LHR national director Dr Vinodh Jaichand said in court papers Home Affairs officials used the Aliens Control Act on a daily basis to secure the arrest and indefinite detention without a warrant and without a trial of persons they sought to remove from South Africa. He said the Act and the new legislation passed by Parliament in May 2002 gave no guidelines about when, why and for how long a foreign national could be detained. The legislation violated fundamental rights such as the right not to be detained without a trial and access to courts. There was no reasonable justification offered for the deprivation or limitation of these rights, he said. Home Affairs assistant director Willem Voster in answering papers stressed that the State had an obligation, in the interests of its citizens, to control entry into the country by foreign nationals. A number of factors, like poverty, political instability and wars caused countless foreign nationals to descend on South Africa without first obtaining the necessary permits. A vast majority of these people did not enter the Republic through ports of entry. This made detection by the state extremely difficult. He said there were an estimated 4,2 million illegal foreign nationals in South Africa, but only 300 immigration officers. It was extremely expensive to remove a foreign national. The removal of 126 Nigerian nationals cost the state R1,2 million in 2000 and it cost about R10 000 to remove a prohibited person to China, with the costs of escorting the person doubling or tripling the amount. The last five years about 170 000 to 180 000 prohibited persons had been removed, but the number remained stable because of a lack of human and financial resources, Voster added. Home Affairs Minister Mangosuthu Buthelezi said the new Immigration Act was passed by Parliament to bring the field of international migration control into compliance with the Constitution and to reflect the highest international standards of human rights protection. The application continues.

Immigration law must balance state and economic interests (IOL, 26/02/2003) - The much-vaunted business-friendly Immigration Act has a supposed underlying philosophy of "opening the front door wider, but closing the back door tighter". But it has already run into trouble with the courts, all of which leaves commentators in the business community increasingly worried. The Cape high court ruled last week in the so-called Eisenberg application that the Immigration Act would not be coming into operation on March 12 2003 - at least not on the basis of the series of government notices issued in November and December last year. The ministry of home affairs may however be able correct the errors identified by the court in time to still have the act come into effect on March 12. But the Eisenberg case had challenged the legality of the regulations on a further basis which the court considered it did not need to address at that time. It can safely be predicted that if the act does start on March 12, it will only be a matter of time before the second challenge is relaunched. More than a few commentators consider that the second challenge has a good chance of success. This challenge flows from a requirement in the act that the minister was to issue draft regulations for comment by the public before he could promulgate a final set of regulations. This never happened. The ministry argues that the regulations promulgated in December - and may be repromulgated "as is" - are only "interim" regulations. Home affairs argues that this strategy means that the ministry is not frustrating parliament's intentions. If ever there was a recipe for chaos, it's the prospect of an already notoriously administratively challenged government department and its officials having to remember from one day to the next which act they are applying. So this is a high-risk strategy. Maybe the court will approve home affairs' arrangement and it will all be plain sailing. But just perhaps (and not for the first time) the court will be critical of the ministry's approach. This just drives home the point that however new and wonderful the act might be in principle, business and the public will be dealing with the same old department of home affairs. One of the casualties of these problems is the small medium and micro enterprise (SMME) sector . Its critical role in local job creation is widely acknowledged. But it is not always noted that the SMME sector gets a raw deal from home affairs. This occurs in the law and departmental practices, as well as soon-to-be regulations.

Frequently in this context, small businesses will be bringing in people as partners or the small businesses will be new ventures being established by foreign entrepreneurs. This requires that the department issue a so-called "own-business work permit" (which is called a 'business' permit in the Immigration Act). The applicant is faced with producing an immense volume of material and at considerable cost in time and money. The applicant has to produce comprehensive business plans showing reasonable prospects of success, confirmation by auditors and others that you have the funds both for the project and to support yourself and your family, and that you have the know-how or a successful track record in the field.  And there has to be a paper trail to support that claim too. The project has to undergo a feasibility test at the department of trade and industry. Home affairs considers (incorrectly) that trade and industry has a veto power on the proposal. So, if the project is in fact vetoed, you are going to have a hard time changing attitudes at home affairs. Immigration law practitioners like to swap nightmare stories till late at night about problematic applications under this heading. And the difficulties do not change under the Immigration Act. Indicatively, the current regulations now appear to impose minimum capitalisation requirements (of R2.5 million). They may also require "proof" that the business will contribute "to the geographical spread of economic activity". Any rethink of the regulations to the Immigration Act must therefore take a long hard look both at the realities of doing business in South Africa and of the economy's need for competent entrepreneurs in the SMME sector. The regulations need to achieve a balance between the interests of the economy and of the state in controlling migration.

Concession on immigration regulations (IOL, 26/02/2003) - Tension between the department of home affairs and parliament over the regulations for the controversial Immigration Act intensified yesterday, but the department made a slight concession for pensioners in the face of public criticism about high financial thresholds for immigrants. Business lobby groups have protested strongly about the provisions that persons applying for permanent residence should have a net worth of R15 million and an income of R25 000 a month, or R20 million in assets. Even pensioners were to have required a monthly pension of at least R25 000 before qualifying for permanent residence. Officials told the portfolio committee on home affairs that because of the public criticism of these levels, the financial thresholds for pensioners only had been lowered to a net worth of R12 million or a pension of at least R20 000 a month. But the controversial special training levy of 2 percent has been retained for the quota permit, which is aimed at addressing specific skills shortages in South Africa. The Cape Town Chamber of Commerce and Industry has lambasted the thresholds, saying they would discourage foreign nationals from settling in the country, and would also drive out many thousands of people who had settled in South Africa, but could not meet the new requirement. Linda Lamprecht, a tax consultant at PricewaterhouseCoopers, said R15 million, even by international standards, was a large amount of net assets "and thereby only millionaires may apply". In her submission, Lamprecht said a more acceptable limit for a retired couple who owned property in South Africa, as well as transport, would be R10 000. Colin Boyes, the regional deputy director of the Cape Town Chamber of Commerce and Industry, said he was still concerned about the regulation being retroactive while temporary permits would have to be renewed, prejudicing those already in South Africa. The department presented the committee with a four-page document detailing corrections to mostly typographical and technical errors in the original document on the regulations.  But committee members were furious that the regulations would still contain provisions rejected last week.

New state lawyer concerned about immigration regulations (Parliament, Sapa, 26/02/03) - The State Law adviser has cautioned the National Assembly's home affairs committee that the new immigration regulations might be open to a successful court challenge, as they do not appear to be transitional. The regulations from the department of home affairs were gazetted last week and are necessary for the new Immigration Act to come into force on March 12. In a legal opinion sent to committee members on Wednesday, Mr OB Kellner, the principal state law adviser, said he was concerned that "there does not seem to be any indication that the regulations are meant to be of a transitory nature". The procedure followed by the department in drafting the regulations has been at the centre of a row between committee members and home affairs officials. The department has insisted the regulations are a transitional mechanism and will be replaced in terms of Section 7 of the Act, which requires an advisory immigration board be set up within 90 days of the legislation coming into force. A public consultation process will then kick in, including a role for Parliament in drafting new regulations. Kellner said regulation 1(2) and the comprehensive nature of the rest of the regulations tended to indicate the opposite of a transitional arrangement. "If this is so, one wonders what is left to regulate in terms of the procedure established by section seven once the board is in place. "It seems to me that the legislature would not have established the elaborate and transparent procedure for making regulations in terms of section 7 if meant to allow the department to make the bulk of the regulations envisaged in section 51 and 52. "I fear that a court would come to the same conclusion if the regulations were to be challenged," Kellner said. Kellner suggested a technical amendment to the regulations to avoid a court challenge. A Cape Town immigration lawyer, Gary Eisenberg, is already challenging the validity of the regulations in the Cape High Court. Eisenberg claims that last week's proclamation stating that the Immigration Act will come into effect was invalid because Deputy President Jacob Zuma had not been properly sworn in as acting president when he signed it. Eisenberg also claims that Home Affairs Minister Mangosuthu Buthelezi must seek public comment on the regulations before he can finally make them. The matter will be heard in the Cape High Court next Thursday.

Lawyer challenges new immigration laws (IOL, 26/02/03) - South Africa has been leaderless since last Monday, when President Thabo Mbeki went overseas and his deputy, Jacob Zuma, was not duly sworn in as acting president. This meant actions by Zuma as acting president had no legal effect, immigration lawyer Gary Eisenberg claimed before the Cape High Court on Tuesday. Eisenberg filed for an urgent interdict after Zuma made a proclamation stating that part of the controversial Immigration Act was to come into effect. This would have enabled Minister of Home Affairs Mangosuthu Buthelezi to re-issue the controversial immigration regulations that were declared unconstitutional by the Cape High Court this month. They were set aside because Mbeki's office had forgotten to publish the notice in the Government Gazette. Eisenberg has now challenged the government to prove when and where Zuma was sworn in by Chief Justice, Judge Arthur Chaskalson. The constitution says "before assuming the responsibilities, duties and functions of the president an acting president must swear or affirm faithfulness to the Republic". But government spokesperson Joel Netshitenzhe said on Tuesday Zuma did not have to be sworn in as he automatically took over when Mbeki was overseas. Indeed, sub-section 90.4 of the constitution, an amendment introduced in 1997, states that "a person who as Acting President has sworn or affirmed faithfulness to the Republic need not repeat the swearing or affirming procedure for any subsequent term as Acting President during the period ending when the person next elected President assumes office". This means that while Mbeki is in office, Zuma - who has acted as president in the past - need not be sworn in again. Without the powers conferred on an acting president, Zuma is unable to declare a state of emergency, declare war or implement national legislation. Eisenberg said in court papers that Zuma appears to have made the proclamation as deputy president, not as acting president. Eisenberg brought the application against Buthelezi but also cited Mbeki, National Assembly Speaker Frene Ginwala, the National Council of Provinces and Zuma as affected parties. They will go to court next Thursday to argue the issues. Advocates Anton Katz and Johan de Waal, for Eisenberg, will then ask the court for:
- Permission to bring the application on an urgent basis.
- An order that the "new" regulations made by Buthelezi on February 21 are unlawful and unconstitutional.
- An order that Buthelezi must get public comment on the regulations before he can finally make them.

Apart from the point that Zuma was not properly sworn in, Eisenberg further complains that Buthelezi has refused to table the regulations for comment. "We have an interest in the lawful and constitutional administration of all laws, and in particular the immigration laws of South Africa," Eisenberg said. He adds that the public also has a legal right to comment on the regulations. The immigration regulations that Eisenberg claims might look very different if the public is given a chance to comment on them include:
- Visitors who wish to come to South Africa and stay for more than three months will have to prove that they can provide funds of R20 000 per person per month. They will also have to obtain visas.
- Retired foreign nationals who wish to stay for three or four years will have to prove that their estates are worth R15-million and earn at least R25 000 per person.
- To obtain permanent residence a foreign national must be able to prove that he or she has R15-million and can pay a sum of R100 000 to the government.

What the constitution says:
Chapter 5, Section 90
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:
- The Deputy President
- A Minister designated by the President
- A Minister designated by the other members of the Cabinet
- The Speaker, until the National Assembly designates one of its other members.
2. An Acting-President has the responsibilities, powers and functions of the Presidents.
3. Before assuming the responsibilities, duties and functions of the President, the Acting-President must swear or affirm faithfulness to the Republic and obedience to the Constitution in accordance with Schedule 2.

Schedule 2
Oath or solemn affirmation of President and Acting-President.
1. The President or Acting-President, before the Chief Justice, must swear or affirm as follows: "In the presence of everyone assembled here, and in full realisation of the high calling I assume as President of the Republic of South Africa, I ... swear/solemnly affirm that I will be faithful to the Republic of South Africa, and will obey, observe, uphold and maintain the Constitution and all other law of the Republic; and I solemnly and sincerely promise that I will always:
- Promote that which will advance, and oppose all that may harm, the Republic.
- Protect and promote the rights of all South Africans.
- Discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience.
- Do justice to all.
- Devote myself to the well-being of the Republic and all of its people.

Home Affairs lowers threshold on immigration permit (Parliament, Sapa, 25/02/2003) - Public criticism had resulted in a lowering of the financial threshold for retired foreigners wishing to reside temporarily in South Africa, according to the department of home affairs. However, the controversial special training levy of two percent has been retained for the quota permit, which is aimed at addressing specific skills shortages in South Africa. Acting director-general Ivan Lambinon told the National Assembly's home affairs committee that the new threshold was reflected in the immigration regulations gazetted last week. The Cape Town regional chamber of commerce and industry is among the critics of the previous regulation, which required an income of R25000 a month or a net worth of R15-million. It claimed this would discourage foreign nationals from settling in South Africa, and would also drive out many thousands of people who had settled in South Africa, but could not meet the new requirement. A tax consultant at PriceWaterhouseCoopers, Linda Lamprecht, said R15-million, even by international standards, was a large amount of net assets "and thereby only millionaires may apply". "Very few individuals will be able to satisfy the condition, thereby precluding many foreign bona fide foreign nationals from retiring in South Africa," she said in a written submission to the committee. The new regulation states that the person wishing to retire must have a net worth of R12-million, providing an income of at least R15000 a month, or demonstrate an income of R20,000 a month in the form of a pension, irrevocable annuity or retirement fund. In her submission, Lamprecht said a more acceptable limit for a retired couple who owned property in South Africa, as well as transport, would be R10000. "It should be noted that with interest rates as they presently are, one would require an investment of only R3-million in a South African bank account to generate an income of R25000 a month."

However, Cape Town regional chamber of commerce and industry regional director deputy director, Colin Boyes, said he was still concerned about the regulation being retroactive. He was referring to the fact that the temporary permit will have to be renewed, and that those already in South Africa will be prejudiced. In a written reply to the UDM's Annelize van Wyk, Lambinon said there had been a great deal of public debate on the issue, which had wrongly identified the retired person permit as though it were the only one available for long-terms visitors. "The truth is that this is a new category of permit which does not replace but merely supplements the other categories of permits, which are still available. Any permit available in the past will be available in the future on better conditions." Lambinon said while the old visitor's permit had to be renewed often, it could now be issued for up to three years merely by showing that one can provide for his or her living expense, calculated at R15000 per month.  To satisfy this amount, the rental value of property owned in South Africa could be included.  If people wished to retire on such a visitor's permit, they may do so without resorting to a retired person permit, Lambinon said. However, the advantage of the retired person permit was that it did not need to be renewed as often. The new Immigration Act, which replaces the unconstitutional Aliens Control Act, will be implemented from March 12.

Buthelezi on New Immigration Act (Business Day, 25/02/2003) - Your paper's recent coverage of the immigration regulations was inaccurate, promoting erroneous perceptions which may damage our economy and property markets. While it is correct that the Cape High Court determined that the Immigration Act did not come into force because of the failure to publish the relevant presidential proclamation, it is incorrect that the court passed any value judgment on the contents of the regulations or the process through which they were adopted. Nonetheless, the regulations had to be reissued, which allowed me to reapply my mind to, and change some of their provisions. Everything is now again on course, and March 12 remains the implementation date. It is incorrect that the sojourn of nonworking foreigners in SA is made harder, with special regard to foreigners owning property or retiring here. Any permit available to them in the past will be available in the future on better conditions. The minimum financial requirements for investments in an active business are much lower and are set to R2,5m, and this threshold is reduced whenever any relevant organ of state requests it, depending of the viability of the business. In addition one can avail oneself of about 10 additional types of permits, one of which is bound to fit any type of circumstances. Criticisms underpin the unwarranted belief that those who have worked on this process for five years would not know how to implement our policies. Our policy remains that of opening the front door to nonproblematic foreign visitors of all types, while closing the back door to illegal immigration and undesirable foreigners. Let us give the new system a chance. We will undoubtedly experience initial problems, as happens with any major reform. Thereafter, if any tested aspect of this reform does not meet clients' expectations or our national interest, it can be improved through considered analysis once the Immigration Advisory Board is set up.
Mangosuthu Buthelezi, MPHome Affairs Minister

Immigration laws for retirees delayed (IOL, 20/02/2003) - New, more stringent financial requirements for people applying for permanent or temporary residence in South Africa or to start small businesses here could be changed if they were found to be too high, Mario Ambrosini, the financial adviser to minister of home affairs Mangosuthu Buthelezi, said yesterday. At a seminar organised by the German, French and British chambers of commerce, Ambrosini said new immigration legislation that had been due to come into force on March 12 would be delayed as a result of a case in the Cape Town high court brought by immigration lawyer Gary Eisenberg, because the legislation had not been published in the Government Gazette. Ambrosini said the new financial requirements for people planning to retire to South Africa, either as permanent residents or  with a permit valid for four years, were regulations and not laws and could therefore be changed.  It had been difficult to find people willing to serve on a new immigration advisory board, he said, but as soon as it was in place the board would look at some features of the new regulations. He said these were not designed to keep people out but to open up the country to new arrivals, provided they could prove they were able to support themselves and would not become a burden on the state. The rules did not apply to people who were already permanent residents.  "Swallows" - people who came here for up to six months in the year, who could produce a return ticket and often had holiday homes here - would not have to provide proof of income. They could come into the country with a three-month holiday permit that could be extended. Ambrosini said a requirement that anyone planning to retire in South Africa should have an income of R25 000 a month was not unreasonable in view of the exchange rate. "I don't know anyone in the US who has retired on less than $2 000 a month." Julia Willand of International Business Network said anyone planning to set up a business in the country would normally have to invest R2.5 million and meet at least two of seven conditions. However, under certain conditions, the minimum investment of R2.5 million could be reduced after consultation with the department of trade and industry. Wilna Barnard, the facilitation manager at the department of trade and industry, said she could advise people on this.

MPs revive dispute over law on immigrants (Business Day, 20/02/2003) - A new round of political rivalry broke out in Parliament yesterday over the troubled Immigration Act, just days after the Cape High Court struck down regulations published in terms of the act on the grounds of procedural irregularity. The revived row threatens to further delay the implementation of the act, which Home Affairs Minister Mangosuthu Buthelezi touted yesterday as world-class legislation. The act was the subject of bitter rivalry between the African National Congress (ANC) and Buthelezi's Inkatha Freedom Party (IFP) in Parliament when it was passed in a blaze of controversy last year. Yesterday ANC MPs accused the home affairs department of trying to sneak in provisions in the regulations which Parliament had rejected during the act's passage through the National Assembly last year. They said the ANC's national working committee would examine their concerns when it met next week. The act is intended to replace the Aliens Control Act, which determined the procedures for foreign nationals seeking tourist, work and residence permits. It is considered especially vital for business, which has long sought clarity in immigration legislation as it affects their need to employ foreigners, especially in certain hi-tech posts that cannot be filled by South Africans.  After this week's court ruling that the regulations issued in terms of the act were unconstitutional on the grounds that the proclamation authorising them had not been signed by President Thabo Mbeki the department shrugged off the defeat as a minor, technical setback. Buthelezi said yesterday: "Someone failed to bring to the printers and publish in the Government Gazette the proclamation which the president executed to bring the act into force." However, the regulations were thrown into further doubt when it emerged that Mbeki had left the country to attend a FrancoAfrican summit in France today and tomorrow, and a summit of the Nonaligned Movement in Malaysia next week without signing the proclamation giving legal effect to the regulations. Presidential spokesman Bheki Khumalo said: "It (the proclamation) is still being scrutinised and the matter is receiving the attention of the acting president (Jacob Zuma)." In Parliament yesterday, at a meeting of the home affairs committee, ANC MPs clashed with home affairs department officials, and refused to be briefed on the bill by Mario Ambrosini, Buthelezi's political adviser. ANC MP Patrick Chauke said SA was not a "banana republic" that would allow anyone to address the committee on the regulations. Among the concerns raised by MPs were the allegedly much-expanded role and functions of the proposed immigration advisory board, border controls and an apparent attempt to introduce departmental restructuring initiatives already rejected by the committee. Buthelezi remained confident, however, that the regulations would come into force as planned on March 12.

Commentary: New laws to send Johnny Foreigner packing (IOL, 19/02/2003) - Thank goodness some people are still prepared to explain new laws to you, even on condition of anonymity. Take the new immigration regulations, for instance. They have just been thrown out of court, with Mangosuthu Buthelezi's legal adviser, Mario Ambrosini, admitting the Home Affairs Department had made a huge mistake. But he was only referring to the fact that they had not yet been published in the Government Gazette. I would have thought that their contents constituted the huge mistake and that failure to publish them, as required by the constitution, was one of the more sensible things the department did. Until an anonymous government spokesperson put me straight. Speaking from KwaZulu-Natal, "Max" (as he preferred to be called) pointed out the department's motivation in insisting that all foreigners wishing to retire to South Africa or obtain permanent residence should be multi-millionaires. "A lot aren't," I said. "What will happen to them?" "Hard cheese, as we say in Ulundi," said Max. "They will have to go back where they came from." "But," I pointed out, "many own property here and are leading decent lives, contributing to the economy." "That's the trouble, there are too many of them," said Max. "A lot of them talk funny, even the ones from Britain. Then there are all those from Germany, France, Italy and God knows where. We've got enough languages of our own without having to listen to Eurocentric babble." "They also bring skills," I argued. "A lot of bloody know-alls," said Max. "They judge everything by European standards and expect everything to work, the trains to run on time, the criminals to be caught and the services to be perfect. They are also the first to criticise the government, especially His Excellency the most Honourable Minister of Home Affairs and revered doctor." "They would just like to be left in peace," I said. "What's more, they are always getting themselves mugged, which leads to bad publicity in overseas newspapers," said Max. "If they want to come here without providing monthly income statements by a chartered accountant, they must just spend their money and then go. They only make South Africans jealous." "The ones who have enough money to stay will certain attract local envy," I said. "There will be too few of them to matter," said Max. After that I didn't have the heart to tell Ronaldo, a very friendly Congolese parking attendant from around the corner, that if he wants to stay longer than three months, he will soon have to be earning at least R20 000 a month. It will put a big strain on the pockets of all of us who support him.

Immigration rules not valid -- court (The Star, 19/02/2003) - South Africa's immigration regulations are unconstitutional because a red-tape slip-up means the minister of home affairs is not empowered to make them. This was the order made by Cape High Court judges Dennis Davis and Andre Blignaut yesterday.  The reason for the order was that the President's office had neglected to publish a proclamation in the Government Gazette stating that two of the Immigration Act had come into operation.  A law cannot come into operation unless it is published in the Gazette.  Gary Eisenberg, one of South Africa's leading immigration lawyers, filed the application on behalf of his law firm, Eisenberg & Associates.  They were represented by advocates Anton Katz and Johan de Waal.  Eisenberg objected to the manner in which the immigration regulations were made, including the fact that the public was not given a chance to comment.  Mario Ambrosini, special advisor to the minister of home affairs, conceded that the president's proclamation had not been published.  His admission, however, came only as he returned from a journey to Europe, where he had to "train" foreign embassy officials in the new immigration regulations.  The most controversial of these regulations include:
* Visitors who wish to come to South Africa and stay for more than three months, will have to prove (by a statement from a chartered accountant) that they can provide funds of R20 000 per person per month.  They will also have to obtain visas;
* Retired foreign nationals, who to stay for several  years, will have to prove that their estates are worth at least R15-million and that they have a monthly income of at least R25 000 per person;
* To obtain permanent residence, a foreign national will have to prove he or she has a net worth of at least R15-million and pay R100 000 to the government.
The Home Affairs Department and the President's Office were represented by David Unterhalter SC and Nazreen Bawa, who wanted the challenge postponed to give their clients a chance to correct the oversight.

Slip-up puts new immigration laws on hold (IOL, 18/02/2003) - A misunderstanding and a Cape High Court judgment have forced Home Affairs Minister Mangosuthu Buthelezi to back down on his controversial new immigration regulations - for now. This means foreigners will have more time to apply for permanent residency under existing laws that are far more lenient than those due to come into effect on March 12. The new regulations under the Immigration Act were roundly criticised at the time they were drawn up as favouring the very rich. Stipulations include that:
- Foreign visitors wishing to stay for more than three months would have to prove they had a monthly income of at least R20 000. They would also need visas.
- Foreign pensioners applying for permanent residence would have to prove that their estates were worth R15 million and that their income was at least R25 000 a month.
- Foreign nationals wishing to obtain permanent residence would have to prove that they had a net worth of R15m and would have to pay R100 000 to the government.

Ruling in favour of leading Cape Town immigration attorney Gary Eisenberg, who brought the application, Cape High Court judges André Blignault and Dennis Davis found on Monday that the regulations were unlawful and therefore unconstitutional, as the sections making them legal had not been published in the Government Gazette. They also ordered the department of home affairs to pay Eisenberg's legal costs. The judgment came as no surprise after Buthelezi's chief legal adviser, Mario Ambrosini, conceded that the regulations had no power and had been a "huge mistake". Requesting a postponement on Monday, Ambrosini conceded in an affidavit that "these regulations have no force or effect and can therefore not be challenged yet". Ambrosini had mistakenly believed the law empowering Buthelezi to issue the regulations had been published in the Government Gazette, which must happen before an act can come into effect. Eisenberg said President Thabo Mbeki had issued a minute and made a proclamation authorising the two sections to come into operation, but these were never published in the gazette, even though Buthelezi's regulations were published, on November 25 last year. The court finding will come as a blow to the Department of Home Affairs, which has spent considerable time and taxpayers' money to train its officials in the new laws. But, says Linda Lamprecht, immigration consultant with PricewaterhouseCoopers, the judgment means that foreigners have at least another four months to make applications under the current laws. "The Immigration Act states that the department must go through three periods of consultation and public participation of 21 days each before the final regulations can be adopted, and the department must also give reasons why it hasn't accepted suggestions or comments from the public. If the department follows this process, then foreigners will have at least another four months to apply." The previous legislation doesn't stipulate a minimum amount of money to be introduced by a foreigner starting a business, but requires that the business provide employment, has export potential and fulfils a need in the market. Pensioners only had to prove their monthly income was adequate for their needs. Buthelezi's spokesperson was not available for comment.

Court rejects immigration regulations (Cape Town, Business Day, 18/02/2003) - SA's troubled immigration legislation hit another snag yesterday when the Cape High Court nullified key regulations required for the implementation of the act. The regulations still face a second challenge on the grounds that the home affairs department failed to subject them to public a consultation process. If this challenge succeeds, the implementation of the act could be delayed further. The department said in response to yesterday's ruling that it would act swiftly to rectify the legal slip up. The Immigration Act has previously been the subject of a highlevel political tussle in Parliament, which eventually drew in Home Affairs Minister Mangosuthu Buthelezi and President Thabo Mbeki. Opponents believe the disputed regulations will act as a disincentive to immigration. There has also been a public outcry about certain provisions, such as the requirement that persons applying for permanent residence have assets of R15m and an income of R25 000 a month, or R20m in assets even pensioners require a monthly pension of at least R25 000 before qualifying for permanent residence. The regulations, published in November last year, were, however, nullified after failure to publish a presidential proclamation in the Government Gazette. Mario Ambrosini, special adviser to Buthelezi, said the new proclamation would be published as soon as possible. "It is no train smash," he said of yesterday's court judgment. He also insisted that the regulations would still come into effect on March 12. A full bench of the Cape High Court declared the immigration regulations ultra vires and unconstitutional yesterday because of the lack of a presidential proclamation. However, the court did not pronounce on the other challenge brought by specialist immigration lawyer Gary Eisenberg that the public consultation process had been ignored. While conceding that the regulations had not been gazetted and proclaimed, the department disputes that the law requires a consultative process. It has argued that it is empowered to publish interim regulations. Eisenberg conceded that yesterday's judgment was a "pyrrhic victory" which government could soon rectify, but said he would now challenge the lack of public consultations. In his founding affidavit Eisenberg noted that "dissatisfaction with the immigration regulations is widespread". He said that he believed the regulations were "draconian" in some respects , and that the credibility of the legislation should have been tested by consultation.

Ambrosini admits immigration rule muddle (Johannesburg, Dispatch Online, 18/02/2003) - After travelling through Europe to educate foreign embassy officials on the new immigration regulations, the special adviser to the Department of Home Affairs, Mario Ambrosini, has conceded that there was a huge slip-up and that the regulations have no power at all. Ambrosini said this in an affidavit supporting an application to have a constitutional challenge against the new immigration regulations postponed to give the Department of Home Affairs a chance to correct its mistakes. The application will be opposed by the legal team for Gary Eisenberg, one of South Africa's leading immigration lawyers, who brought the challenge at the end of last year.  Months of correspondence, controversy and finally a lawsuit was to come to a head in the Cape High Court. Eisenberg's legal team will argue that the regulations have not been made in the legally prescribed way, which would have afforded an opportunity for public comment. The most controversial of the regulations include: 
* Visitors who wish to come to South Africa and stay for more than three months will have to prove (by a statement from a chartered accountant) that they can provide funds of R20000 per person per month. They will also have to obtain visas;
* Retired foreign nationals who wish to stay for three or four years will have to prove that their estates are worth R15million and that they have a monthly income of at least R25000 per person; and
* To obtain permanent residence foreign nationals will have to prove that they have a net worth of R15m and pay R100000 to the government.
Ambrosini said in his affidavit that even though he had been "convinced" that the law empowering the Minister of Home Affairs to issue the regulations had been published in the Government Gazette, it now seemed that it had not.  His admission only came after he returned from a journey to Europe where he had to "train" foreign embassy officials in the new immigration regulations.  "These regulations have no force or effect and can therefore not be challenged yet," Ambrosini said in papers before court. According to Eisenberg's papers before court the president did issue a minute and made a proclamation authorising the two sections to come into operation, but this proclamation was not published in the Government Gazette. Ambrosini reiterated that he was always convinced that the President's proclamation was published in the Government Gazette. He asked state attorney Lionel Egypt to retrieve the relevant gazette while he went on his trip overseas. It was only on his return and after receiving a report-back of the thorough but fruitless search by Egypt that he realised there had been a huge mistake. "I always assumed that the Gazette existed," he said. "Even after Egypt told me he could not find it, I was still not convinced that the Gazette did not exist". Ambrosini's concession came after the Department of Home Affairs filed a long list of technical objections against Eisenberg's court case -- including a challenge to Eisenberg & Associates' standing before the court.

Chaos reigns after immigration law blunder emerges (The Star, 17/02/2003) - After travelling through Europe to train embassy officials on new immigration regulations, Mario Ambrosini, special adviser to the Department of Home Affairs, has conceded that these regulations have no power at all. Ambrosini said this in an affidavit supporting an application to have a constitutional challenge against the new immigration regulations postponed to give the department a chance to fix its mistakes. The application will be opposed by the legal team for Gary Eisenberg, who brought the challenge last year. After months of controversy, an application could soon be heard in the Cape High Court. Eisenberg will argue that the regulations were not made in the legally prescribed way and did not afford an opportunity for public comment. The most controversial of the regulations include:
* Visitors who wish to stay in South Africa for more than three months will have to prove (by a statement from a chartered accountant) they can provide funds of R20 000 per person per month.
* Retired foreign nationals who wish to stay for several years will have to prove that their estates are worth at least R15-million and that they have a monthly income of at least R25 000 per person.
* To obtain permanent residence, a foreign national will have to prove a net worth of at least R15-million and pay R100 000 to the government.

Ambrosini stated that even though he was "convinced" the law had been published in the Government Gazette, as is the legal requirement before an act can come into operation, it now seems it has not. Ambrosini said: "These regulations have no force or effect and can therefore not be challenged yet." According to Eisenberg, the president made a proclamation authorising the two sections to come into operation, but this was not published in the Government Gazette. Ambrosini stated that even though he was "convinced" that law had been published in the Government Gazette, "it now seems that it has not". He had asked state attorney Lionel Egypt to retrieve the relevant gazette while he (Ambrosini) went on his trip overseas. It was only on his return and after receiving a report-back of the thorough but fruitless search by Egypt that he realised there had been a huge mistake. Ambrosini's concession came after the Department of Home Affairs filed a long list of technical objections against Eisenberg's court case.

Immigration regulation 'unconstitutional' (Cape Town, News 24, 17/02/2003) - 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. 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.

State admits it bungled on immigration rule (IOL, 17/02/2003) - After months of correspondence, controversy and finally a lawsuit to have controversial immigration regulations declared unconstitutional, the chief legal adviser to the minister of home affairs has finally conceded that they made a huge mistake. Mario Ambrosini said in an affidavit filed late last week, that even though he was "convinced" the law empowering the minister to issue the regulations had been published in the Government Gazette, as was the legal requirement before an act came into operation, this had not been done. His admission, however, only came as he returned from Europe, where he had to "train" foreign embassy officials in the new immigration regulations. "These regulations have no force or effect and can therefore not be challenged yet," Ambrosini said in papers before court seeking a postponement of the challenge filed by leading immigration attorneys Gary Eisenberg from Eisenberg & Associates. Eisenberg asked the Cape High Court to declare controversial immigration regulations made by the minister in November last year to be unconstitutional because the law empowering the minister to make these regulations was not yet in operation. According to Eisenberg, President Thabo Mbeki did issue a minute and made a proclamation authorising the two sections to come into operation, but this proclamation was not published in the Gazette. Ambrosini reiterated he was always convinced the president's proclamation was published in the Gazette. He had asked State Attorney Lionel Egypt to retrieve the relevant Gazette while he (Ambrosini) went on his trip overseas. It was only on his return and after receiving a report-back of the thorough but fruitless search by Egypt that he realised that there had been a huge mistake. Eisenberg will now ask the court to order costs against the department of home affairs. When he launched the litigation against the immigration regulations, Eisenberg said he would not seek costs but only disbursements if he won the case. The new developments had now caused him to change his application.

New immigration law has no power (IOL, 17/02/2003) - After travelling through Europe to train embassy officials on new immigration regulations, Mario Ambrosini, special adviser to the department of home affairs, has conceded that these regulations have no power at all. Ambrosini said this in an affidavit supporting an application to have a constitutional challenge against the new immigration regulations postponed to give the department a chance to fix its mistakes. The application will be opposed by the legal team for Gary Eisenberg, who brought the challenge in 2002. After months of controversy, an application could soon be heard in the Cape High Court. Eisenberg will argue that the regulations were not made in the legally prescribed way and did not afford an opportunity for public comment.
The most controversial of the regulations include:
- Visitors who wish to stay in South Africa for more than three months will have to prove (by a statement from a chartered accountant) they can provide funds of R20 000 per person per month.
- Retired foreign nationals who wish to stay for several years will have to prove that their estates are worth at least R15-million and that they have a monthly income of at least R25 000 per person.
- To obtain permanent residence, a foreign national will have to prove a net worth of at least R15-million and pay R100 000 to the government.

Ambrosini stated that even though he was "convinced" the law had been published in the Government Gazette, as is the legal requirement before an act can come into operation, "it now seems that it has not". Ambrosini said: "These regulations have no force or effect and can therefore not be challenged yet." According to Eisenberg, the president made a proclamation authorising the two sections to come into operation, but this was not published in the Government Gazette. He had asked state attorney Lionel Egypt to retrieve the relevant gazette while he (Ambrosini) went on his trip overseas. It was only on his return and after receiving a report-back of the thorough but fruitless search by Egypt that he realised there had been a huge mistake. Ambrosini's concession came after the department of home affairs filed a long list of technical objections against Eisenberg's court case.

New challenge to Immigration Act (Mail & Guardian, 14-20/02/2003) - South Africa's new immigration regulations are unconstitutional because they were published while the Immigration Act was not yet in force and without obtaining the statutorily required public comments, the Cape High Court will be told on Monday.  Immigration specialist Gary Eisenberg is asking the court to find the regulations ultra vires, and thus unconstitutional, because there was no legal basis for them. The legal action against the Minister of Home Affairs, Mangosuthu Buthelezi, and President Thabo Mbeki is the latest twist in the controversial law, which has been eight years in the making.  Last year the law became a bone of contention between the African National Congress and the Inkatha Freedom Party, particularly over sections dealing with the envisaged immigration courts, work permit quotas and the role of accountants in certifying that a foreign worker's skills are essential for South Africa. Buthelezi himself criticised the Act after Parliament passed it in May.  At the heart of the court challenge is what appears to be yet another bungle. According to Eisenberg's court documents, the immigration regulations were published before the president had publicly stipulated a commencement date for the Act, as required by the law itself.  A presidential proclamation was also never published in the Government Gazette, as required by Section 55 of the Immigration Act.  The respondents have argued in court papers that a government notice was published on November 28, setting out the commencement dates of various sections leading up to the full implementation of the Act by March 12 this year.  But this was a moot point because the immigration regulations had already been published on November 25, according to Eisenberg's court papers.  The public consultations required under Section 7 of the Immigration Act did not take place, he said, which meant the regulations were without legal standing and therefore invalid.  The Department of Home Affairs is opposing the court action. A spokesperson said the regulations were issued in accordance with the procedure set out in law.  "This litigation, no matter how well intentioned, is without merit.  We look forward to a successful commencement of the Immigration Act on March 12 although we know we will have teething problems and hope people will bear with us." The department's staff have already undergone training in the new regulations. Meanwhile, last year's wrangling over the final shape of the IFP-piloted legislation is set to continue because few are satisfied with the regulations.  The Democratic Alliance has sharply criticised the required R 25 000 monthly income threshold for retired persons wanting to settle in South Africa.  The ANC is disgruntled about the possible waiver of the foreign workers' "licence fee" -- 2% of their yearly taxable income -- by the home affairs department.  The waiver would be allowed after the department's officials consulted the department of labour and trade and industry to establish that foreigners' employers had also set up training opportunities for South Africans.

Immigration Act hits new snags (Mail & Guardian, 12/02/2003) - Controversy continues to dog the Immigration Act, as regulations issued in terms of it by Minister of Home Affairs Mangosuthu Buthelezi receive flak from both the ruling party and the opposition.  Opposition concerns focus on the high entry thresholds for retired people wanting to relocate to South Africa — a monthly income of R25 000 or a net worth of R15-million. By contrast, the African National Congress’s objections focus on a clause in the regulations allowing the “licence fee” for the employment of foreign workers — 2% of the foreigner’s taxable remuneration, renewable each year — to be waived. The waiver would apply if the Department of Home Affairs, after consulting the labour and trade and industry departments, is satisfied that the employer has a training programme aimed at transferring skills from foreigners to South Africans or reducing reliance on foreign labour. The ANC opposed the initial approach of the Immigration Act, which was to remove the discretion of government officials in the granting of work permits and essentially allow employers to decide their needs. It is understood the party is also concerned about the wording of regulations that allow accountants to vet whether the country requires a foreign worker in a particular skill category. The ANC has argued that the labour and trade and industry departments need to be closely involved in setting limits. The latter is, however, included in the regulations. Commenting on the threshold for pensioners, the Democratic Alliance’s Mike Waters said it was “more than the vast majority of South Africans earn ... It seems an excessive amount.” Buthelezi’s special adviser, Mario Ambrosini, said the figures were based on the “past experience of the discretionary [system]”. He said it was unusual for countries to give residence to retired foreigners. Britain, Italy and Australia, for example, did not allow it. He also said retirees from other countries did not pay taxes in South Africa. The legislation, a major bone of contention between the ANC and the Inkatha Freedom Party during its passage through Parliament last year, was approved in May. Buthelezi criticised the final version, which includes a quota system for work permits for foreigners.

Immigration law faces court action (IOL, 20/01/2003) - Cape Town law firm has asked the Cape High Court to declare controversial immigration regulations unconstitutional as they have not been made in the prescribed way, and are unfair and ultimately harmful. Specialist immigration law firm Eisenberg & Associates have filed an urgent application in the Cape High Court to declare the Immigration Regulations unconstitutional before they come into operation in less than two months' time. Advocates Anton Katz and Johan de Waal will appear for Eisenberg & Associates. Attorney Gary Eisenberg said in papers before court that the Immigration Act compelled the Minister of Home Affairs Mangosuthu Buthelezi to publish certain information, but he had not. The papers stated he should have:
- Published and tabled his intention to adopt regulations,
- Published and tabled draft regulations in parliament,
And published the final regulations with certain comments.

Eisenberg said in papers that the minister made these immigration regulations on November 25, last year, but failed to comply with the act's requirements. Eisenberg further explained that in another matter, pending before the Pretoria High Court, the minister of home affairs said the following in papers before court: "The Immigration Act of 2002 will come into effect on March 12, 2003, thereby repealing and replacing the Aliens Control Act." "Two sections of the Immigration Act came into effect on December 4, 2002. This enabled me to make Immigration Regulations in terms of the Immigration Act on December 6, 2002." Eisenberg continued that since the publication of the Immigration Act on May 31 last year the minister of home affairs had used "limited monetary and human resources" in the drafting and making of the Immigration Regulations. Eisenberg stressed that at no time had the minister complied with law prescribing the procedure to make these immigration regulations. The minister claimed that two sections of the Immigration Act came into operation in early December last year which enabled him to issue the regulations made on November 25, 2002. Eisenberg, however, said he had no knowledge of these two sections coming into operation. "After November 25, 2002 I have seen numerous newspaper articles expressing the views of individuals and corporate entities potentially affected by the Immigration Regulations, including foreign investors living and wanting to live in South Africa," said Eisenberg. "Dissatisfaction with the immigration regulations is widespread. That dissatisfaction has generated much media attention, a fact of which this court can take judicial notice." He said the regulations were "unfair, unreasonable and ultimately harmful". "The Immigration Regulations cannot lawfully be brought into force and effect on any particular date before those publication and public comment procedures contained in section 7 of the Immigration Act had been followed. "On January 9, 2003, I addressed a letter to the minister of home affairs advising him of my concern and requesting that he responds to the questions set out in my letter by no later than 5pm on Monday, January 13 2003." The minister has not yet answered Eisenberg's questions. "This application is obviously inherently urgent as the immigration regulations are scheduled to come into force and effect on 12 March 2003," he said.

Parliamentary Portfolio Committee on Home Affairs
Minutes of Meetings

Tuesday 25 February 2003

Immigration Act Regulations: briefing

 

Wednesday 19 February 2003

Immigration Act regulations: briefing; Annual Report: finalisation

This page was last updated on 30 October 2003.