PLEASE NOTE: Readers wanting to reproduce and
reference
this article should contact SAMP
for permission
Back to POLICY DEVELOPMENT or HOME
I. Procedural Rights of Foreign Nationals
Xu v Minister van Binnelandse Sake; Tsang v Minister 1995 (1) SA 185 (T), 1995 (1) BCLR 62 (T)
In this South African case, the court dismissed two applications made by foreign nationals seeking written reasons from the Department of Home Affairs for its refusal to grant one a temporary residence permit and extend the term of another temporary residence permit. The judge claimed that the aliens bringing the case had no rights or legitimate expectations or interests that were sufficient to invoke the protection of the South African constitution and to require that written reasons be given. This case stands for the idea that the Constitution does not apply to aliens. Later cases have effectively overruled this decision.
Naidenov v Minister of Home Affairs 1995 (7) BCLR 891 (T) (following Xu, the court dismissed an application made in terms of constitutional rights of administrative justice and of access to information by an alien accused of having committed a serious crime abroad who was seeking to extend his temporary residence in order to apply for political asylum)
Parekh v Minister of Home Affairs 1996 (2) SA 710 (D) (following Xu, the court dismissed an alien's application for written reasons in relation to a decision not to grant the alien permanent residency)
Foulds v Minister of Home Affairs 1996 (4) SA 137 (W)
The case concerned an application for permanent residency in South Africa by an engineer that was refused without any reasons being given. Basing its decision on common law rather than constitutional grounds, the court set aside the refusal and ordered the Minister of Home Affairs to give the applicant an opportunity to respond to information adversely affecting him. The court thus accepted the argument that an applicant for permanent residency should "be informed by the respondents or the [Immigrants Selection] Board of all information submitted to the Board with regard to his application, particularly prejudicial information . . . [and] that he be given an opportunity to reply thereto."
Handmaker v Minister of Home Affairs (unreported, no. 11794/98 TPD, 20 May 1998) (Where the Department had refused to extend the work permits of two non-South Africans who were working in the area of refugee law and policy, the court found that it would not be fair to put the two workers out of the country while an internal administrative application for review directed to the Minister of Home Affairs was pending.)
Yuen v Minister of Home Affairs 1998 (1) SA 958 (C)
A citizen of Hong Kong was deported to his country of origin in April of 1996 but later turned up back in South Africa. In the deportation, the Department had been of the opinion that he had submitted a false work offer (to work in a Chinese restaurant) and that he was wanted by the Hong Kong police for failure to appear in court. However, neither of these factors had been disclosed to Mr Yuen before he was deported and before his permanent residence permit taken away. Indeed, the court noted Aa series of what can only be described of as inept steps@ taken by the Department. The court said that the legal principle of audi alteram partem B hear the other side B should apply to the decision to deport Mr Yuen and to take away his permanent residence permit. As in Foulds, this principle meant that the Department needed to inform Mr Yuen of the case they had against him. Since the Department had told him very little and had not given him a chance to respond effectively, the court overturned his deportation and gave him his permit back, although the judge did not explicitly use constitutional law reasoning.
Tettey v Minister of Home Affairs 1999 (3) SA 715 (D), 1999 (1) BCLR 68 (D)
In this case, a Ghanian citizen entered South Africa illegally and obtained papers by fraud. However, he soon turned himself in to the Department of Home Affairs. Officials there promised to regularise his status if he assisted them in their investigations into those who provided him with illegal papers. A group of persons was in this situation. The Department attempted to remove Tettey three years after he gave evidence on their behalf. In part, following Xu, the Department argued that the Constitution did not apply to aliens and that Aan alien who applied for residence within the Republic has no rights, interests, or legitimate expectations that are affected by a decision to refuse to issue a permit.@ The Court rejected this argument and found the Departmental promise to help Tettey gave rise to protection under the Constitution. As the Court stated, Athere is nothing in the Constitution to indicate that an alien is not entitled to procedurally fair administrative action.@ Disagreeing with Xu, the Court thus ordered that the Department could not deport Tettey pending the outcome of further proceedings.
Thomas v Minister of Home Affairs (unreported, Cases No. 12745/98, 13503/98, and 13435/98, CPD, van Heerden AJ, 21 September 1999) (>the Dawood case=) (on appeal to the Constitutional Court, hearing scheduled for 23 March 2000)
This case struck down as unconstitutional the fees of approximately R10,000.00 charged by the Department of Home Affairs in respect of permanent residence applications by the foreign spouse of a South African permanent resident or citizen. Additionally, the provision of the immigration legislation requiring alien spouse applicants for permanent residence to already have a temporary residence permit was struck down. In terms of this case, such applicants are allowed to apply from within the country. The case also represents one of the first South African uses of a class action, where the relief is applicable not only to the individuals but to an entire group of persons. The court decided that the right of a husband and wife to live together in a community of life was protected by the Constitution=s right to dignity.
Dawood and another v Minister of Home Affairs and others; Shalabi and another v Minister of Home Affairs and others; Thomas and another v Minister of Home Affairs and others (7 June 2000, CCT 35/99, Constitutional Court)
This case relates to the constitutionality of s25(9) of the Aliens Control Act relating to the grant of temporary residence permits. Section 25(9) of the Aliens Control Act requires all applicants for immigration permits to be outside South Africa when their permits are granted with the exception of spouses, permanent same-sex life partners, dependent children and destitute, aged or infirm family members of South African citizens and permanent residents.
The applicants were all South African citizens with spouses who were neither citizens nor permanent residents of South Africa. The case examined the constitutional right of spouses to cohabit and the need for Parliament to lay down proper guidelines.
Each application is considered on its merits and the grant or extension of a temporary residence permit to a foreign spouse may be refused. The South African spouse is then forced to go abroad with the foreign spouse or remain behind alone pending the outcome of the application. Many are too poor to have this choice and have to remain in South Africa without their spouses. Enforced separation places strain on any relationship and may destroy the marriage relationship altogether.
Justice Kate O'Regan, for a unanimous Court, found that Section 25(9)(b) violates the right to family life and the right to human dignity. In addition, the omission from the Aliens Control Act of criteria relevant to a refusal to grant or extend temporary residence permits introduces an element of arbitrariness that is inconsistent with the constitutional protection of the right to marry and establish a family.
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (2 December 1999, CCT 10/99, Constitutional Court) 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC)
This case struck down s 25(5) of South Africa's Aliens Control Act 96 of 1991 as unconstitutional. That subsection did not give partners in permanent same-sex life partnerships the same benefits it extended to "spouses" (e.g. persons married to each other). The Court decided that gays and lesbians who are permanent South African residents and who have foreign national same-sex life partners should receive similar benefits of easier access to permanent residence as married heterosexual couples. Using the rights of equality and dignity of the permanent South African residents, the Court held that this section of the Aliens Control Act conveyed the message that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected and constituted an invasion of their dignity. The Court did not need to consider the right of the freedom of movement (such as used in Zimbabwe).
Kohlhaas v Chief Immigration Officer, Zimbabwe 1998 (3) SA 1142 (ZS), 1998 (6) BCLR 757 (ZS)
The right of freedom of movement entrenched in the Zimbabwean constitution entitles every Zimbabwean citizen not only to reside in any part of Zimbabwe but to do so with his or her spouse, even if the spouse is an alien who is not otherwise entitled to permanent residence. Since the community of life flowing from the marriage relationship is so important, to force a citizen to choose between staying in Zimbabwe and following a spouse outside the country would violate the citizen spouse=s right of freedom of movement.
Rattigan v Chief Immigration Officer, Zimbabwe 1995 (2) SA 182 (ZS) (coming to same conclusion under an earlier version of the Zimbabwean constitution)
Salem v Chief Immigration Officer, Zimbabwe 1995 (4) SA 280 (ZS) (such right of freedom of movement includes the right of the foreign national spouse to work in Zimbabwe)
In re Wood and Hansard 1995 (2) SA 191 (ZS) (foreign national mother has no freedom of movement right to reside with citizen son in Zimbabwe)
Tai v Minister of Home Affairs (unreported. Case No. 21615/98, WLD, Nugent J) (a wife=s right of residence in the Republic does not include a right to have her foreign national husband who had no immigration status to stay with her)
III. Immigration Administration
Rehman v Minister of Home Affairs 1996 (2) BCLR 281 (Tk) (the national Aliens Control Act takes precedence over the Aliens and Travellers Control Act of the former homeland of Transkei, even thought the latter was not explicitly repealed)
Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W) (the attempt by the Department to revoke on the grounds of fraud the right of permanent residence granted to the wife of a foreign national journalist who had been outspoken in his criticism of the South African government failed because the Department was unable to produce clear documentation of the delegated administrative authority of the official who took the decision)
Crook v Minister of Home Affairs (unreported, no. 11617/99, TPD) (once the Immigrants Selection Board has authorised the issue of permanent residence permits, the Director-General is obliged to issue such a permit subject to any condition that the Board may have deemed necessary but may not delay the issue of a permit untill such a condition is fulfilled)
Elliot v Commissioner of Police and Another 1998 (1) SA 21 (ZS)
A Zimbawean court found the arbitrary and random stopping of individuals to check their identity documents was found to be contrary to the freedom of movement guarantee of the Constitution. In the case, an attorney was stopped on his way from his law offices to a lunch-time keep-fit class in central Harare. While he was released shortly, in the words of the court Athe perceived injustice of the incident to which he and others had been subjected that afternoon rankled with the application [and] led directly to the bringing of this application.@ The Supreme Court of Zimbabwe thus declared unconstitutional the provision in the law making it an offence for a person to be found without his or her identity document.
Silva v Minister of Safety and Security 1997 (4) SA 657 (W) (http://www.law.wits.ac.za/docs/dasilva1.html) -- see also Minister of Home Affairs v Silva (unreported, no. 23344/96 WLD, 28 August 1997) (application for leave to appeal) (http://www.law.wits.ac.za/docs/dasilva2.html)
Here, a High Court judge refused to let the police off the hook of justifying the detention of a noncitizen. Judge Heher granted an order releasing a noncitizen from custody in the Newlands (now Sophiatown) Police Station. The person was being held by the police on the strength of a warrant from Home Affairs after being detained at the offices of Home Affairs. His sister and her attorney tried to track him down for days, but were bounced from Home Affairs to the police back to Home Affairs. In ordering the release, the judge held both Home Affairs and the police accountable. He stated Athe police cannot and should not take instructions from another department and detain persons in consequence of those instructions, without making absolutely sure that they are in a position to justify that detention and, if that justification needs contact with the officials of the other department, that they are in a position to make such contact at the soonest possible time. I do not think the liberty of the individual can depend on whether the wheels of state administration run smoothly or not.@
Fei Lui v Commanding Officer, Kempton Park 1999 (3) SA 996 (W)
In this case, the Court ordered the immediate release from South African police custody of several foreign nationals of the People=s Republic of China. The Department of Home Affairs had acted in bad faith in complying with the provisions of the Aliens Control Act requiring judicial review of detention pending removal longer than thirty days. Further, the current warrants for their detention were improperly issued by Home Affairs.
Johnson v Minister of Home Affairs and Another 1997 (2) SA 432 (C) 1997 (3) BCLR 355 (C) (detention for approximately fourteen months of a foreign national in order to force him to divulge his suspected citizenship was unlawful and a violation of the applicant=s right to dignity and to freedom and security of the person)
South African Human Rights Commission v Minister of Home Affairs (unreported, no. 99/28367, WLD) (in this pending litigation, an order was granted that the Department of Home Affairs and the Lindela Repatriation Centre to make reasonable arrangements so that no detention at Lindela exceeds the thirty day limit in law; the Department and Lindela were ordered to report on these arrangements to the Court and to the South African Human Rights Commission)
Djama v Government of the Republic of Namibia and Others 1993 (1) SA 387 (NmHC) (any detention which does not have a reasonably impending removal in mind is arbitrary; in terms of article 11(4) of the Namibian constitution, such detention for longer than two weeks is arbitrary)
Pembele v Appeal Board for Refugee Affairs (unreported, no. 15931 CPD, 10 Dec. 1996)
A major complaint of the refugee rights community in relation to the South African government=s arrangements for asylum procedures was the refusal of the Department of Home Affairs to give reasons when it denied applications for refugee status. This practice continued despite the meetings hosted by the South African Human Rights Commission. In late 1996, the Commission and the Legal Resources Centre initiated a lawsuit on behalf of a refugee partly on the grounds of refusal to give reasons. This resulted in a landmark out-of-court settlement where the Department agreed to provide reasons for denials of refugee status.
Baramoto v Minister of Home Affairs 1998 (5) BCLR 562 (W) (also available at http://www.law.wits.ac.za/docs/barafin.htm)
Although initially welcomed, three senior military officials from Mobotu Sese-Seko=s corrupt and human rights-abusing regime soon found themselves fending off arrest and detention orders from the South African government. Without formally applying for political asylum in terms of the administrative procedures that have been set up within the Department to determine refugee status, the generals sought an order of the court declaring them to be refugees and thus entitled to asylum. The court refused to grant such an order. The court supported the legality of the ad hoc refugee status determination procedures put into place in South Africa since 1994. The court stated that it had Ano reason to hold that a hearing before the relevant tribunals would not be fair@. Significantly, part of the reason why the court was prepared to accept the present procedures was the fact that South Africa has international obligations in terms of the 1951 UN Convention, the 1967 Protocol, and the 1969 OAU Convention all of which South Africa has signed and ratified. The court noted that A[t]he Republic of South Africa implements its obligations through administrative procedures@ and that A[t]he South African government . . . must apply the law and give effect to the international agreement[s] which it has concluded.@
Kabuika v Minister of Home Affairs 1997 (4) SA 341 (C) (accepting that customary international law of refugees was applicable, the court concluded that the Department of Home Affairs may well have misinterpreted the facts of the applicants application for refugee status; Department ordered to provide temporary residence permits to the applicants pending final determination of their status)
Muhire v Minister of Home Affairs (No. 4259/96 CPD, 20 May 1996) (no evidence of exceptional circumstances that would support an order directing Home Affairs to issue a work permit pending review of the Department=s refusal of asylum to the applicant)
VII. Substantive Rights of Foreign Nationals
Larbi-Odam v MEC for Education (North-West Province) 1998 (1) SA 745 (CC) (Summary and Commentary by Jonathan Klaaren at http://www.law.wits.ac.za/docs/larbi.htm )
In this case, the Constitutional Court applied the equality protections of the interim Constitution to non-South African citizens and struck down a Department of Education regulation prohibiting foreign citizens from being permanently employed as teachers in state schools. The regulation had provided that, subject to certain exceptions, only South African citizens could be appointed to permanent teaching posts in state schools. The Court found that discrimination on the basis of citizenship could be discriminatory. The Court noted three reasons for this: that foreign citizens are a minority in South Africa and all countries, with little political power; that citizenship is a personal attribute which is difficult to change; and that there were specific threats and intimidation that these foreign teachers faced. All of these reasons made the foreign citizens a vulnerable group that should be protected in terms of the equality clause. In this case, the Court further held that denying permanent residents job security when they are allowed to live and work in South Africa indefinitely (and to apply in due course for citizenship) was unfair discrimination. While some jobs might be constitutionally limited because of particular political sensitivity (e.g. a Judge of the Constitutional Court), in general, employment opportunities should be available to permanent residents and South African citizens on an equal basis. The Court reversed Larbi-Odam v MEC for Education 1996 (12) BCLR 1612 (B).
Baloro v University of Bophuthatswana 1995 (4) SA 197 (BSC) (discrimination against aliens on the ground of national origin is a prohibited ground of discrimination in terms of section 8 of the interim Constitution)
Summaries by Jonathan Klaaren, Faculty of Law, University of Witswatersrand.
Back to POLICY DEVELOPMENT or HOME