Home Affairs Minister Mangosuthu Buthelezi had not been deceitful when he promulgated the controversial immigration regulations, the Cape High Court said on Friday.
The court was handing down the reasons for ruling in favour of President Thabo Mbeki in his immigration regulations dispute with Buthelezi.
Judge Hennie Erasmus on April 6 set aside a controversial court order, obtained by consent between Buthelezi and attorneys Eisenberg and Associates who specialise in immigration matters.
The court order in question erroneously validated immigration regulations that were considered unconstitutional.
The controversy resulted in an unusual urgent application to set aside the order, launched by Mbeki against Buthelezi, and prompted the judge to remark: ”This is an extraordinary case, in which relief of an extraordinary nature is sought.”
The court saga started when Buthelezi hastily promulgated the regulations while they were still under discussion by the cabinet, some members of whom considered them unconstitutional.
During the hearing, senior counsel Michael Donan, on behalf of the president, alleged not only that Buthelezi’s actions were ”carefully orchestrated to circumvent the cabinet process” but that Buthelezi had ”deliberately misled the court as well as President Mbeki.”
Donan alleged the court was misled in that the judge who had earlier granted the order-by-consent had not been informed of the full context in which the consent had been reached.
Donan alleged the president had been misled in that Buthelezi had failed to inform him that Buthelezi had in fact consented to the controversial order.
However, Erasmus ruled that the facts did not justify the inference that Buthelezi’s conduct had been a scheme of deliberate deception, conceived in bad faith.
The judge said although Buthelezi had had reservations about the cabinet process, he had nevertheless promulgated the regulations under the bona fide belief that he was compelled by court order to do so.
Erasmus said the controversial court order had to be set aside, not on the grounds that it was obtained by deception — which it was not — but because the order itself was incompetent.
It was incompetent because the making of regulations was a matter of collective responsibility of the executive, and cabinet approval was necessary, he said. – Sapa