CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 22/01
MINISTER OF HOME
AFFAIRS Applicant
versus
DOMINIQUE
LIEBENBERG Respondent
Delivered on : 8 October 2001
JUDGMENT
SKWEYIYA AJ:
Introduction
| [1] | This is an application by
the Minister of Home Affairs (the Minister) which purports to be brought in
terms of section 172(2)(d) of
the Constitution, which in relevant part provides
that — |
“Any . . . organ of state with a sufficient interest may . . . apply,
directly to the Constitutional Court to confirm . . .
an order of constitutional
invalidity by a court in terms of this subsection.”
The
“order of constitutional invalidity” referred to in the above
paragraph relates, in terms of section 172(2)(a), only
to “an Act of
Parliament, a provincial Act or any conduct of the President.”
| [2] | The order that the Minister
seeks to confirm is one made in the Witwatersrand High Court pursuant to a draft
order agreed upon by
the parties and is in the following
terms: |
“1. That such Temporary Residence Permit be granted
‘free’.
2. Declaring that none of the fees published in Annexure to Regulation 2 of the
Schedule to the (secont) [sic] Seventh Amendment
of the Aliens Control
Regulations (Fees) 2000, dated 1st April, Regulation Gazette No. 21 1016, be
applicable to aliens [sic] spouses
and dependent children of persons who are
lawfully and premanently [sic] resident in the Republic, and that such fees
mentioned in
such Regulations to be invalid to the extent that it applies to
persons falling under S 25(5) of the Aliens Control
Act.
3. That the Respondent and Parliament to correct the Constitutional
inconsistency that alien spouses married to South African citizens
or residents
cannot be allowed to work, seek work, undergo medical treatment, sutdy [sic]
and/or exercise business activities in
South Africa, unless such alien spouses
of a person who is permanently and lawfully resident in the Republic applies for
such Temporary
Residence Permit which is usually valid for a relatively short
period and pays a fee thereof, because such conduct/requirement is
inconsistent
with sections 9, 10, 14, 21, 28 and 29 of the Constitution of South Africa Act
108 of 1996, and therefore should be
declared
invalid.
4. That the Department of Home Affairs undertakers [sic] to facilitate
Applicant’s husbands [sic] movements in and out of the
Republic.”
The Minister applied for
confirmation of paragraphs 2 and 3 of this order.
| [3] | The matter was not argued
before us in open court. It was considered and decided on the written argument
submitted on behalf of the
Minister and the respondent’s affidavits filed
in this Court, all seeking confirmation of the relevant paragraphs of the
order. |
| [4] | Crucial to the decision of
the present application is the correct construction of the above order for only
if the order or any part
thereof can properly be categorised as the
constitutional invalidation of “an Act of Parliament, a provincial Act or
any conduct
of the President” can it be confirmed by this Court. Before
addressing this issue, it is useful to sketch the history of the
matter. |
| [5] | Dominique Liebenberg, a
South African citizen who is the respondent in this application, lawfully
married a Senegalese national in
Johannesburg on 27 June 2000. Her husband
first entered South Africa in December 1997, using a Senegalese passport; he
thereafter
sought political asylum and was, on 8 April 1998, granted a temporary
permit and allowed to take up employment on certain conditions.
After the
marriage, the respondent’s husband lost his Senegalese passport. The
respondent applied for a temporary residence
permit on his behalf at the
Johannesburg regional office of the Department of Home Affairs. Apparently,
this application was made
to enable the husband to remain in South Africa
pending an application for an immigration permit for him in terms of section
25(5)
of the Aliens Control Act[1]
(the Act). The application was refused on the ground that the
respondent’s husband, having lost his passport, had no legal
status to
remain in South Africa. The respondent alleges that she was informed by the
applicant’s Johannesburg regional office
that in order for her husband to
remain in South Africa, she would have to replace his passport and would have to
pay the following
fees: |
(i) R310,00 in order to obtain what is described as “a spouse
visa”;
(ii) a non-refundable and non-guaranteeable amount of R560,00 which would
entitle her husband to seek employment; and
(iii) an additional non-refundable and non-guaranteeable amount of R1100,00
which would entitle her husband to take up the employment,
in the event of his
receiving an offer of employment.
| [6] | The respondent was
dissatisfied with the decision and launched urgent application proceedings in
the High Court, challenging the need
for payment of fees as scheduled in the
Regulations[2] by a person in her
circumstances. She had no legal representation in those proceedings and her
papers are not well drafted. The
Department of Home Affairs did not oppose the
application but rather undertook to issue a temporary residence permit to the
respondent’s
husband on condition that he applied for a new passport from
his country of origin within a period of six months of the issue of
such permit;
it also undertook to facilitate his movements between South Africa and Senegal
for the purpose of his acquiring a new
passport. The Witwatersrand High Court
made the order referred to in paragraph 2
above. |
| [7] | Paragraphs 1, 2 and 3 of the
order granted by the High Court are a verbatim repetition of prayers 3, 4 and 5
of the respondent’s
notice of motion which were incorporated by reference
into the draft agreed order and mirror all its defects. The order was probably
granted in circumstances of great pressure, as prevail in the motion division of
the High Court in question, without the parties
apparently being aware of the
obscurities in the agreed draft order, or bringing them to the attention of the
court. This is all
regrettable, as an order issued by a court “binds all
persons to whom and organs of state to which it
applies.”[3] It is particularly
important that, where orders invalidate legislation, such orders be
specific. |
Analysis of the order
| [8] | The Minister did not ask
that paragraphs 1 and 4 of the order be confirmed, as they clearly do not relate
to any order of constitutional
invalidity contemplated by section 172(2) of the
Constitution. |
| [9] | While the first half of
paragraph 2 of the order (up to permanently “resident in the
Republic”) does not purport to declare
any statutory instrument invalid,
its terms merely being of a declaratory interpretative nature, the latter part
does declare invalid
“such fees mentioned in such Regulations”.
This paragraph of the order does not fall within the purview of section 172(2).
It declares invalid a statutory instrument which is merely a regulation and, on
the authority of the judgments in
Dawood[4] and
Booysen,[5] does not fall
within the ambit of this section and cannot be
confirmed. |
| [10] | In written submissions made
on behalf of the Minister it is contended that, because section 1 of the Act
defines a “regulation”
as meaning “any regulation made or in
force under this Act” and “this Act” is defined as including
“any
order, direction or regulation issued or made or deemed to have been
issued or made under this Act” the regulations made in
terms of section 56
should be regarded as being equivalent to Acts of
Parliament. |
| [11] | The contention on the
Minister’s behalf has no substance. Section 167(5) and section 172(2) of
the Constitution make it clear
that an order of constitutional invalidity
requiring confirmation by this Court is one that concerns “an Act of
Parliament,
a provincial Act or any conduct of the President.” The terms
“an Act of Parliament” and “provincial Act”
are not
expressly defined anywhere in the Constitution, but there is no doubt as to what
these terms mean. An Act of Parliament
is an Act passed by the national
legislature.[6] A provincial Act is
an Act passed by a provincial legislature. |
| [12] | The definition in section 1
of the Act does not purport to convert a regulation (or anything else referred
to in the definition) to
the status of an Act of Parliament, nor could it. The
purpose of the definition is to clarify the applicability of the Act. For
example, section 7(1)(iii) empowers an immigration officer to require certain
persons to “submit to any examination or test
to which he may be subjected
under this Act”. The definition makes clear that the applicable test
would include one prescribed
by regulation. |
| [13] | The Constitution does not
prescribe how regulations are to be made or enacted. All it does is to provide
in section 92(1) that “Ministers
are responsible for the powers and
functions of the executive assigned to them by the
President.”[7] This highlights
the fact that Ministers exercise no more than subordinate, delegated authority
when they make regulations in terms
of Acts of Parliament or perform other
ministerial duties. Accordingly, regulations are not Acts of Parliament and
their invalidity
is not subject to confirmation by this
Court. |
| [14] | Paragraph 3 of the order
does two things. First, it orders the “Respondent and Parliament”
to “correct [a] Constitutional
inconsistency”. This constitutional
inconsistency is described to be — |
“. . . that alien spouses married to South African citizens or residents
cannot be allowed to work, seek work, undergo medical
treatment, sutdy [sic]
and/or exercise business activities in South Africa, unless such alien spouses
of a person who is permanently
and lawfully resident in the Republic applies for
such Temporary Residence Permit . . . and pays a fee thereof, because such
conduct/requirement
is inconsistent with sections 9, 10, 14, 21, 28 and 29 of
the Constitution of South Africa Act 108 of 1996 . . .
.”
Up to this point in the paragraph nothing is
declared to be constitutionally inconsistent. At most it seems to me to be a
mandamus
on the Minister or on Parliament. We are not called upon to decide
whether such an order is permissible. There is no appeal against
it. Whatever
the phrase “the Respondent and Parliament to correct the constitutional
inconsistency” in paragraph 3 of
the order may mean, nothing it declares
constitutionally invalid requires confirmation under section 172(2). The words
following
on “because”, in so far as they relate to the preceding
part of the paragraph, constitute no more than a reason for the
mandamus; they
do not in this context constitute a declaration of constitutional
inconsistency.
| [15] | Secondly, the last phrase
of paragraph 3 of the order decrees that “therefore [something] should be
declared invalid.”
It will be assumed in favour of the Minister that
— |
(a) the words “should be declared invalid” in their context mean
“is hereby declared invalid”;
(b) what accordingly is declared invalid is the
“conduct/requirement” which is stated to be “inconsistent with
sections 9, 10, 14, 21, 28 and 29 of the Constitution”; and
(c) such requirement is —
“. . . that alien spouses married to South African citizens or residents
cannot be allowed to work, seek work, undergo medical
treatment, sutdy [sic]
and/or exercise business activities in South Africa, unless such alien spouses
of a person who is permanently
and lawfully resident in the Republic applies for
such Temporary Residence Permit . . . and pays a fee thereof . . .
.”
Even if all these assumptions are made,
there is no declaration of invalidity that can be confirmed under section 172.
Where any
declaration of invalidity is made under the provisions of section
172(2)(a) of the Constitution, the order in question should clearly
indicate
precisely what Act of Parliament, or provisions thereof, what provincial Act, or
provisions thereof, or what conduct of
the President, is being declared
constitutionally invalid. No statutory provisions are mentioned in the order
and one is left to
speculate as to what provisions could be the subject of the
order. This is not the form of declaration contemplated by the Constitution
under section 172(2)(d).
| [16] | In the result, the
application is dismissed. |
Chaskalson P,
Langa DP, Ackermann J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs
J, Yacoob J and Du Plessis AJ concur.
[1] Act 96 of 1991.
[2] Titled the “Seventh
Amendment of the Aliens Control Regulations (Fees)” in Government Notice
R276 Government Gazette 21016 of 1 April 2000 (Reg Gaz 6759),
referred to hereafter as “the regulations”.
[3] Section 165(5) of the
Constitution.
[4] 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 [2000] ZACC 8; 2000 (3) SA
936 (CC); 2000 (8) BCLR 837 (CC) para 11.
[5] Booysen and Others v Minister
of Home Affairs and Another [2001] ZACC 20; 2001 (7) BCLR 645 (CC) para 1.
[6] See Zantsi v Council of State,
Ciskei, and Others [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) where this
Court held that an Act of Parliament is an Act of the national legislative
authority.
[7] Section 133(1) has a corresponding
provision for provinces.
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