Statement on Immigration Regulations regarding the Cape High Court Judgement

Today, an application made by President Thabo Mbeki in the Cape High Court to set aside the court order made by the court on 08 March 2004 was successful. In terms of the original order the Minister of Home Affairs, Dr Mangosuthu Buthelezi was ordered to publish immigration regulations which were supposed to be implemented by 08 April 2004. He was also ordered to compile the comments and suggestions made by other Cabinet Ministers and to publish these with a view to possibly amending the regulations at a later stage.

President Mbeki in his capacity as the Head of State and the Head of the Government took urgent steps to stop the publication of the regulations. In terms of section 85 of the Constitution, it is the duty of Cabinet to develop national policy which is in the national interest.

Attorney Gary Eisenberg who deals extensively with immigration matters had sought an order in terms of which the Minister of Home Affairs would only be able to make regulations in terms of section 7 of the Immigration Act. He also sought an interdict to prevent the Minister from making regulations other than those he was about to make in January 2004.

Minister Buthelezi initially agreed to abide by any decision which the Court might make. However, at a later stage he consented to an order being made, which order was proposed to Mr. Eisenberg by Minister Buthelezi through his legal representatives. Essentially the order made was one which Minister Buthelezi himself had wanted.

At the time of seeking an order by consent, Minister Buthelezi knew that the regulations were being discussed in Cabinet; that various Ministers had serious reservations about some of the regulations; that the regulations had implications for many departments and functions of government; and that there were concerns about the implementation, constitutionality and legality of the draft regulations.

Government is also of the view that the powers granted to the Minister under Section 7 of the Immigration Act were granted to him as a member of the Executive. Consequently, and in broad terms, regulations or any other decisions a Minister makes should reflect the policy position of the government and not narrow individual preferences.

Because of the nature of the concerns with regard to the draft regulations, Cabinet established an Inter-Ministerial Task Team to consider the regulations. The Chief State Law Adviser was also asked to provide comments on the legal concerns raised. These processes have not as yet been finalised.

The President, in his capacity as the Head of the National Executive was therefore obliged to take the steps he did, in the interests of good governance, the rule of law and to protect the integrity of the Cabinet processes.

The decision of the Court today, therefore confirms the positions that the President and Cabinet had adopted on the matter. It means that the Cabinet processes will run their course; and that the draft Regulations will not immediately come into effect.

Once more, we would like to reiterate that government is committed to ensuring that the Immigration Regulations are consistent with the intent of the Immigration Act of 2002. The matter is being handled expeditiously and with maximum rigour, and we are certain that the final product will be in South Africa's best interest.

06 April 2004

Issued by: Government Communications (GCIS)
For further enquiries contact:
Minister of Justice and Constitutional Development
c/o Nathi Kheswa: 083 376 4669