Home Affairs Minister Mangosuthu Buthelezi took a cautious step on Tuesday, saying he would respond to the Cape High Court ruling on immigration regulations once reasons were given.
Earlier on Tuesday, the Cape High Court ruled that an order to publish immigration regulations which were supposed to be effected by Wednesday, be set aside. The original order was made to Buthelezi in March.
However, Buthelezi said on Tuesday it would be premature for him to respond to the court ruling because the reasons for the order had not yet been made public.
”I will read the reasons for the order once they are available, which will determine how I am required to react to it within the range of options available under the law,” he said.
Buthelezi agreed to publish the controversial immigration regulations as per an earlier court order, creating space for the Inkatha Freedom Party leader and President Thabo Mbeki to slug it out in the courtroom.
The entire matter came to a head when Cape Town immigration lawyer Gary Eisenberg brought an application to force Buthelezi to publish final immigration regulations.
Buthelezi published these, precipitating the court battle. Buthelezi’s consent to the court order, even though he knew that Cabinet was still considering the regulations and without informing Mbeki, had no legal effect and was ”creating a potential constitutional crisis”, Justice Minister Penuell Maduna, acting on behalf of Mbeki, said in court papers.
A government communications body said Mbeki, as head of the National Executive, was obliged to challenge the immigration regulations.
”The President, in his capacity as the Head of the National Executive was… 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 Government Communication and Information Service (GCIS) said.
”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 some 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.”
GCIS said Buthelezi should have reflected government policy.
”… 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.”
The cabinet was concerned about the draft regulations and had established an interministerial task team to consider them.
”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.”
The decision meant ”the Cabinet processes will run their course; and that the draft regulations will not immediately come into effect.”
GCIS said it ”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.”
Buthelezi, however, argued that the intended beneficiaries of South Africa’s new immigration regulations will now suffer ”potential irreparable harm”.
This was according to an affidavit handed to the Cape High Court on Tuesday before the court ruled that immigration regulations Buthelezi had gazetted on March 8 be set aside.
In Buthelezi’s affidavit, he contends that the major difference between the interim and the final regulations lay in the fact that the financial thresholds and other requirements relating to permits had been substantially reduced.
”Accordingly, under the new regulations, financial thresholds have been reduced… in respect of long-term visitor permits, business permits for investors, relatives’ permits and retired persons’ permits,” said Buthelezi.
However, the effect of Tuesday’s ruling by Judge Hennie Erasmus meant that the interim regulations, which was in place for the past 12 months, would continue to remain in force.
Meanwhile, Eisenberg said the judge’s ruling held ”massive implications”.
According to Eisenberg — who the state alleged during court proceedings might even have colluded with Buthelezi to secure the court order to gazette the regulations — potential immigrants to South Africa wanted service delivery.
”What people have wanted is certainty of law… The new regulations allowed for a far more flexible and fair approach from a factual perspective,” he said.
Tuesday’s ruling was characterised by an increasingly acrimonious exchange between Mbeki and Buthelezi, with the April elections as a constant backdrop. – Sapa