Given recent developments around the issue of Immigration Regulations, and in response to media enquiries on this matter, government wishes to set out to the public a clear and comprehensive picture of the processes under way in this regard.
In January 2004, the Minister of Home Affairs was preparing the promulgation of Immigration Regulations, the draft of which was discussed by the Cabinet. Cabinet raised some policy and constitutional concerns regarding discrepancies in the draft immigration requirements as they applied to citizens of various categories of countries.
The Cabinet decided that consultations needed to continue among the Ministers and Departments concerned, and further that these issues should be referred to the State Law Advisors for a legal opinion. The law advisors were instructed to work, in this process, with a Task Team set up by the Minister of Home Affairs.
Accordingly, the State Law Advisors submitted their comments on the draft regulations to a Task Team of the Department of Home Affairs. Interaction between the two entities is continuing.
This is an internal government process, after which the external consultations as envisaged by Section 7 of the Immigration Act will commence. Because the regulations have profound foreign and security policy implications, they need to go through Cabinet.
A Committee of Ministers chaired by the Minister of Home Affairs who is the responsible Minister for the Immigration Act has been charged with finalising recommendations on the regulations for submission to Cabinet. This Committee will evaluate the inputs from the State Law Advisors.
On or about 2 March 2004, Eisenberg and Associates launched an urgent application in the Cape High Court against the Minister of Home Affairs for an order declaring that the Regulations made by the Minister were valid and lawful, and interdicting the Minister from making any other Regulations. The Minister of Home Affairs subsequently filed a notice of his intention to abide by an order made by the court. However, the Minister, at a later stage, consented to a specific order being made, something that had not been asked for by the applicant.
Essentially, that order compelled the Minister forthwith to publish the regulations which are still being considered by the law advisors and which also have to be further reflected upon by Cabinet. The order also directed the Minister to make public Cabinet's comments on the regulations and to publish them with a view to making amendments to the regulations.
In the view of government, this order, which was granted by the High Court, infringes upon the powers of the Executive to determine national policy and is therefore unconstitutional. Such an order would have a severe impact on the smooth and proper functioning of government.
President Thabo Mbeki thus requested Minister of Justice and Constitutional Development, Pennuel Maduna to address this matter in a manner that would not compromise the country's national interests. Minister Maduna approached the High Court on an urgent basis to stay the order that had been granted, and he will approach the court again to have the order set aside.
The court order requiring the Minister of Home Affairs to publish the Immigration Regulations has since been stayed by the Cape High Court. This means that the Court has ordered the Minister of Home Affairs not to continue with the publication of both the regulations and the Cabinet discussion documents.
Accordingly, any Immigration Regulations that may have been published are of no force and effect until this matter is finalised.
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.
Issued by: Government Communications (GCIS) For further enquiries contact: Minister of Justice and Constitutional Development c/o Nathi Kheswa: 083 376 4669