The new Immigration Act, along with regulations which were declared invalid and unconstitutional by the Cape High Court last month, came into force at 6pm on Monday.
This followed a marathon legal battle, which Home Affairs Minister Mangosuthu Buthelezi still hopes to continue in the Constitutional Court.
The regulations were supposed to come into force at midnight on March 11, but specialist immigration lawyer Gary Eisenberg secured a ruling from a full bench of the High Court that they were unlawful.
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 on April 7.
Back in court on Monday 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 on Monday afternoon when Buthelezi’s legal representatives filed notice with the Constitutional Court of their intention to seek leave to appeal.
The filing would have automatically suspended the High Court’s original finding that the regulations were invalid, and brought in the new act together with new regulations, had not Van Zyl’s order been in force until 6pm.
As it happened, at 6pm, when the new regime finally clicked into gear, the two teams of lawyers were back in court arguing an application by Eisenberg to have the automatic suspension suspended.
Hlophe and Van Zyl rejected the application shortly before 8pm, despite Katz’ argument that allowing the regulations to come into force would ”irreparably prejudice the public interest”.
It meant, Katz said, that there could be ”no return to a lawful situation” should the Constitutional Court rule against Buthelezi.
The judges also ordered Eisenberg to pay costs this time around, and rejected an immediate bid by his legal team to appeal.
After the hearing, Eisenberg said through a legal representative: ”Because the matter is now before the Constitutional Court, it would be inappropriate to comment on the merits of the matter.
”However it appears that the effect of the dismissal of the (suspension of the suspension) application this evening is to bring into force invalid and unlawfully made immigration regulations.
”Let the Constitutional Court have the final word on the issue.”
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.
”At the beginning it (the new system) won’t be easy. There are going to be teething problems. But we hope that in due course the launching of this reform will serve South African interests.”
He said immigration officials had been literally standing by with new sets of rubber stamps for documents to hear the outcome of the court hearings. – Sapa