As the clock ticked away before South Africa’s new immigration regulations come into effect at midnight on Tuesday, litigation challenging the regulations was adjourned in the Cape High Court on Monday.
Advocate David Unterhalter, SC, appearing on behalf of Minister of Home Affairs Mangosuthu Buthelezi, asked the court for time to consult with his client after allegations were made that Buthelezi had acted in a mala fide (bad faith) manner by agreeing to a court order to publish the controversial regulations.
In papers before the court, Minister of Justice and Constitutional Development Penuell Maduna, acting on behalf of President Thabo Mbeki, says Buthelezi’s consent to the court order — even though he knew the Cabinet was still considering the regulations and without informing Mbeki — had no legal effect and was ”creating a potential constitutional crisis”.
Referring to a ”melange of fragments” keeping together the applicant’s (Mbeki’s) case, Unterhalter said ”now we read that Gary Eisenberg and Buthelezi conspired to get the court order”.
”In the light of this … where impugning the minister [Buthelezi] … we must be given an opportunity to take instructions,” said Unterhalter.
Meanwhile, Advocate Michael Donen, SC, appearing for Mbeki, said Unterhalter had ”misunderstood” their case.
Donen said rumours of a constitutional crisis were premature, and what had occurred was a ”misunderstanding, slash, deception matter”.
Donen conceded that his additional heads of argument might not have been the clearest, but promised to have this set right and matters of clarity addressed.
Judge Hennie Erasmus said the allegations contained in them were ”serious” because it suggested Buthelezi had acted in a mala fide manner, in ”a scheme to sidestep the Cabinet”.
Erasmus said he was in a difficult position and ordered that court proceedings resume at 2pm, ”whatever happens”.
The immigration regulations were suspended in March last year after a full bench of the Cape High Court ruled they were invalid because Buthelezi had not followed notice and comment procedures.
The entire matter came to a head when Cape Town immigration lawyer Eisenberg brought an application to force Buthelezi to publish final immigration regulations.
Buthelezi published these, precipitating the current court battle. — Sapa