Various cases we have worked on.

R S Nandutu and Others v Minister of Home Affairs and Others (CC)

June 28, 2019

Consequent to the dismissal of the application in the Western Cape High Court on 18 April 2018 the applicants persisted in their appeal directly to the Constitutional Court. The Court heard argument on 21 February 2019 and decided it on 28 June 2019.

The Court decided that it is not constitutionally permissible to compel foreign spouses and children of citizens or permanent residents holding visitor’s visas to leave South Africa in order to lodge their applications to change their visa status.

The majority of the Court decided that the ratio decidendi in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) is the foundation to the Court’s approach. The Court in Dawood, 20 years earlier, declared legislation to be constitutionally invalid in that it limited the right to dignity of spouses, effectively leaving family members at the mercy of immigration authorities and requiring foreign spouses to leave South Africa pending an application for an immigration permit.

As a consequence of Dawood, South Africa’s immigration legislation, until the latest amendments of the Immigration Act which came into effect on 26 May 2014, enabled foreign spouses and dependent children of South African citizens or permanent residents to apply for their visas whilst in South Africa.

While section 10(6)(b) of the Immigration Act allows a certain category of foreigners to change their visa status from within the country, Regulation 9(9)(a) does not provide foreign spouses and children with this option. While there are exceptions, it appeared to the Court that the “legislature may have taken one step forward and two steps back.” Contrary to the lower Court, the Dawood line was resurrected:

“The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfillment in an aspect of life that is of central significance. In my view, such legislation would clearly constitute an infringement of the right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that will constitute an infringement of the right to dignity, but any legislation that significantly impairs the ability of spouses to honour their obligations to one another would also limit that right. A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honour that obligation would also constitute a limitation of the right to dignity.”

On the basis of the Dawood standard, Regulation 9(9)(a) is invalid and unconstitutional. The constitutional limitation of Regulation 9(9)(a) is not reasonable nor justifiable in an open and democratic society based on human dignity, equality and freedom. Neither the Director-General or the Minister of Home Affairs advanced a sufficient justification as to why spouses and children of citizens or permanent residents should be excluded from the categories of persons covered by the “exceptional circumstances” in Regulation 9(9)(a).

The Court set aside the Order made by the lower Court, declared Regulation 9(9)(a) to be inconsistent with the Constitution and therefore invalid, to the extent that the rights accorded by means of the exceptional circumstances contemplated in section 10(6)(b) of the Immigration Act are not extended to the foreign spouse or child of a South African citizen or permanent resident. Moreover, such declaration of invalidity is suspended for 24 months from the date of such Order, and during the period of suspension the following is to be read into Regulation 9(9)(a):

“(iii) the spouse or child of a South African citizen or permanent resident.”

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Nandutu and Others v Minister of Home Affairs and Others (11440/17) [2018] ZAWCHC 47; [2018] 3 All SA 259 (WCC)

April 18, 2018

The circumstances which gave rise to this case are almost identical to those that give rise to Booysen 20 years earlier. In terms of section 10(6)(b) of the Immigration Act, read with Immigration Regulation 9(5), which came into force on 26 May 2014, any foreigner in possession of a visitor visa or a medical treatment visa, absent exceptional circumstances, would have to apply for a change of status in their countries of origin.

The exceptional circumstances listed in Regulation 9(9)(a) do not include spouses or children of a citizen or permanent resident and therefore if such spouse or child was in possession of a visitor visa (such as a visitor visa for tourist purposes) such individual would not be allowed to change status in South Africa. Such spouses and children would be forced to separate in order to obtain their long-term temporary residence visas.

The applicants in this matter were two couples adversely affected by this prohibition. The foreign spouses exhausted their remedies in terms of section 8 of the Immigration Act by appealing to Ministerial level, and when those appeals were rejected, they proceeded to the High Court to have Regulation 9(9)(a) declared invalid and unconstitutional.

Although the Court accepted the ratio decidendi of the Booysen judgment, it decided that the Minister’s waiver of Regulation 9(9)(a) should suffice to satisfy the exception contemplated by section 10(6)(b). Once the Minister granted the waiver, the holder of a visitor visa should be able to apply for a “spousal” section 11(6) visa whilst in the Republic.

The Court specifically decided that section 10(6)(b) read with Regulation 9(9) does not establish an infringement of the right to human dignity, as the waiver procedure provides full protection to the foreign spouse. The Court rendered a peculiar view of the applicants case as follows:

“In my view, the applicants seek to seize an unfair advantage out of the misinterpretation by administration officials, through an extension to themselves of such undue benefits as to include their circumvention of the Act. As persons whose risks to the Republic have not been assessed, they have a provision in the Act that provides a remedy which exposes them to no prejudice whatsoever. The remedy accords with the checks and balances built into the Act and it is not inconsistent with the Constitution …”

The Court’s jaundiced view of the applicant’s challenge to the constitutionality of Immigration Regulation 9(9)(a) ran counter to the purport and spirit of all proceeding constitutional jurisprudence on the subject.

The Court dismissed the application, granting leave to the foreign applicants to submit their applications for ministerial waivers.

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Eisenberg & Associates and Others v Director General Department Home Affairs and Others (10043/11) [2012] ZAWCHC 191

November 27, 2012

This case involved contempt proceedings against the Director-General of the Department of Home Affairs on the basis that an earlier Court Order was not complied with.

The applicants brought these proceedings on the basis that the Department of Home Affairs was protractedly delayed in its processing and adjudication of a large number of permanent residence applications.

Counsel for the Department of Home Affairs tried to justify non-compliance with the earlier Court Order in that “the cut-off dates were not cast in stone”. This position vis-à-vis timeframes for decision-making on pending applications contained in Court Orders has characterized the position of the Department of Home Affairs in relation to Court Orders generally.

The Director-General, on Affidavit, attempted to justify his non-compliance with the earlier Order on the basis of Departmental incapacity. Although the Court did not accept this explanation as sufficient to justify non-compliance, it did not find that the Director-General was male fide and willful in his non-compliance and therefore he could not be declared to be in contempt of Court. In conclusion, the Court was satisfied to impose punitive costs on the Department of Home Affairs for non-compliance.

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Malachi v Cape Dance Academy International (Pty) Ltd and Others (CCT 05/10) [2010] ZACC 24; 2011 (3) BCLR 276 (CC)

November 25, 2010

On 24 August 2010 the Constitutional Court confirmed the Western Cape High Court’s Order of invalidity relating to the impugned provisions of section 30 of the Magistrates’ Courts Act.

As a consequence of Eisenberg & Associates’ public interest endeavours, the common law and legislation allowing an arrest and incarceration for a civil debt (arrest tanquam suspectus de fuga) an integral part of South African law at least since 1842, was forever nullified. It was therefore no longer possible for a creditor in South Africa to bring an ex parte application for the arrest and incarceration of a civil debtor suspected of fleeing the creditor’s jurisdiction.

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Malachi v Cape Dance Academy International (Pty) Ltd and Others (CCT 05/10) [2010] ZACC 13; 2010 (6) SA 1 (CC) ; 2010 (11) BCLR 1116 (CC)

August 24, 2010

In July 2009 Gary Eisenberg received an invitation to lunch from the then Consulate-General of the Russian Federation, stationed in Cape Town. The Russian diplomatic missions in South Africa provided the Republic of Moldova with consular services. The Consul-General sought ad hoc advice from Eisenberg relating to a Moldovan passport application made by a certain woman, Tatiana Malachi. Malachi was arrested on 9 July 2009 on the basis of an ex parte Warrant of Arrest tanquam suspectus de fuga – as a debtor suspected of fleeing the jurisdiction – by the owner of a Cape Town strip club.

On her arrival in South Africa in March 2009 the strip club owner had taken her passport and kept it during the entire period of her employment. The owner advised Malachi that he would not return her passport unless she paid him $2,000.00 for her air ticket and a R20,000.00 levy. Malachi was unable to pay either of these amounts as she was not earning sufficient income during her employment with the strip club.

Malachi applied for a new Moldovan passport at the Consul-General of Russia to facilitate her return to Moldova. Prior to her departure from South Africa on 9 July 2009, she was arrested and taken into custody at Pollsmoor Prison. The arrest was made pursuant to an Arrest Warrant issued by a Cape Town Magistrate ex parte on the same morning of her intended departure. Malachi was to remain in custody pending her return to Court on 30 July 2009. If she furnished adequate security for the total claim of R100,000.00 plus interest and costs, Malachi would be released from custody and the Arrest Warrant discharged. Malachi had no assets of any tangible value in South Africa and therefore was unable to furnish adequate satisfactory security.

From the Consular-General’s explanation of what had occurred, Eisenberg decided to represent Malachi in bringing an urgent application to the Western Cape High Court to set aside the Arrest Warrant, to have Malachi immediately released from Pollsmoor Prison, and to declare section 30(3) of the Magistrates’ Courts Act of 1944 and the common law rule of arrest tanquam suspectus de fuga unconstitutional and invalid.

Once the owner of the strip club became aware of Malachi’s application, he agreed to the immediate discharge of the Arrest Warrant and Malachi’s release from custody.

Section 30 of the Magistrates’ Courts Act made no provision for the defendant who was arrested and detained to be informed of her Constitutional right to legal representation, or even to have any of her other Constitutional rights explained to her. Furthermore section 30 did not make provision for a debtor to be informed of her available defenses to an arrest suspectus de fuga. Therefore, a defendant who may have had a valid defense could be arrested and detained in terms of section 30 for a minimum period of two weeks. The facts relied upon in an ex parte application may have been fabricated. However, in terms of section 30 the defendant would not have been able to challenge this. The only way to avoid arrest and detention was to have paid the amount claimed by the applicant or to provide adequate security for the claim. The Minister of Justice, the Fourth Respondent in the case, immediately conceded that section 30 of the Act was unconstitutional in as much as it was inconsistent with the constitutional right to equality. Malachi had asserted that a person arrested pursuant to suspectus de fuga had less rights than an accused in criminal proceedings.

The Court decided that section 30 of the Magistrates’ Courts Act infringed the Constitutional rights to equality as a defendant in a civil matter was treated unfairly in relation to a defendant who is able to furnish adequate security for her release from detention. A debtor in a civil matter was treated unequally compared to an accused in a criminal case in that an accused person had constitutionally guaranteed fair trial rights while section 30 of the Magistrates’ Courts Act did not make provision for any of the Constitutional rights available to criminally accused persons.

Moreover section 30 of the Act also infringed the right to dignity of the person so arrested, as a debtor might have been incarcerated for an amount claimed by the applicant. To incarcerate a debtor on this basis would be tantamount to an arbitrary depravation of liberty therefore violating the right to dignity of the debtor as the arrest procedure in section 30 also allowed the defendant to be subjected to cruel and degrading treatment. Eisenberg had visited Malachi in Pollsmoor Prison and found her to be depressed and suicidal as she was stripped of any means of defense.

Furthermore, the Court found section 30 to have infringed the right of freedom of movement. An arrest tanquam suspectus infringed on the right to freedom of movement in that a defendant who did not have any assets with which to furnish adequate security to secure her release from prison would face incarceration indefinitely, even after the return day and Court appearance. Freedom to leave South Africa would therefore be limited by the arrest tanquam suspectus de fuga provision. The Court decided furthermore that section 30 also violated a person’s constitutional right to freedom and security enshrined in section 12 of the Constitution.

The Court also decided that the purpose of section 30 is irrational and illegitimate as it allowed for an arrest of an indigent person who may not have any assets in South Africa, as was the case with Malachi herself. The goal of securing payment for a judgment debt or security for payment could be achieved by less restrictive measures other than the arrest procedure in terms of section 30.

On the aforegoing grounds, section 30 of the Magistrates’ Courts Act was held to be unconstitutional and invalid.

The Court held that even though Malachi was released from prison at the time of the hearing, the issue of law as it related to the arrest and detention of civil debtors remained of considerable importance and impacted on the interests of other detained persons who are similarly incarcerated due to the suspectus de fuga procedure. For these reasons the Court severed the offensive wording “arrest tanquam suspectus de fuga” from section 30(1) of the Act and deleted section 30(3) of the Act entirely, and on such basis the common law relating to an arrest tanquam suspectus de fuga was struck down in its entirety.

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President of the Republic of South Africa v Eisenberg and Associates and Another (1992/2004, 2406/2004) [2004] ZAWCHC 16)

April 16, 2004

This matter involved an application by the then President Thabo Mbeki to have an Order of High Court rescinded.

Consequent to the Minister’s victory in the Constitutional Court, and his publication of his regulations inviting public comment, Eisenberg submitted his comments to the Minister. Through the litigation process Eisenberg kept in touch with the Minister’s Legal Advisor, Dr Mario Oriani-Ambrosini. At a media briefing on 11 February 2004 the Minister stated that the Cabinet had decided to review the regulations and Eisenberg had been briefed of the contents of such statement. In the first few days of March 2004 Eisenberg learned from Ambrosini that the Minister’s final regulations, after public comment had been taken into consideration, could not be published. Ambrosini informed Eisenberg that the Minister had been directed to chair a Cabinet sub-committee to create a layer of Cabinet oversight into making a final set of regulations for publication.

Eisenberg believed that there was nothing in the Immigration Act which contemplated Cabinet-level oversight and consultation and therefore the review of the regulations by Cabinet was unlawful. Eisenberg contacted Ambrosini and advised him that should the Minister not publish a final set of regulations, as contemplated by section 7, Eisenberg would challenge, again, any process that prevented such publication. Consequent to meeting with the Minister’s legal counsel and Ambrosini, Eisenberg and the Minister’s legal team approached the Western Cape High Court on 8 March 2004 and obtained an Order by Consent.

Such Order effectively directed the Minister to publish his final regulations forthwith and which would come into effect on 7 April 2004.

In his Founding Affidavit Eisenberg explained that his urgent application for a declaratory Order was brought because he had reason to believe that the ad hoc committee of Ministers in Cabinet were to make changes to the draft regulations that the Minister had already in principal decided must be made. Eisenberg was of the opinion that the Cabinet had no power to make immigration regulations, and that the procedure adopted by the Cabinet was in violation of and a subversion of the consultative process provided for in section 7 of the Act. The purpose of the declaratory Order was to ensure that only regulations made in accordance with the prescribed consultative process should be promulgated. In terms of the Order issued by the High Court the Minister published the regulations on the same day, on 8 March 2004. Two days later the Judge was approached in the late evening as a matter of urgency by the legal representatives of President Thabo Mbeki. The President sought to have the Judge’s Order of 8 March 2004 rescinded.

Eisenberg decided to abide by the decision of the High Court, while Minister Buthelezi applied for Leave to Intervene as he had a substantive interest in the outcome of the President’s rescission application.

The President’s application was based on the question whether or not the approval of Cabinet was necessary before the Minister published his immigration regulations on 8 March 2004. If the approval of Cabinet was necessary, the regulations were made unlawfully, and the President was entitled to have the Order rescinded. The Court decided that although section 7 enables the Minister to make regulations in terms of a public comment procedure, it does not empower the Minister to make regulations that develop and implement national policy without Cabinet oversight. The exercise of the power to make regulations by the Minister is, therefore, not a matter of individual but of collective responsibility and therefore Cabinet oversight and review is fundamental to the implementation of a coordinated national policy.

A central question in this case was whether a dispute between the President and the Minister who was a member of his Cabinet, is a dispute between organs of state, or whether it is an internal dispute within an organ of state, namely, the Cabinet, and whether the Cabinet is an organ of state. The Court decided that the dispute in this case did not involve a dispute between organs of state (the Cabinet not being an organ of state), but rather a dispute concerning actions taken by a member of the Cabinet which the President alleges are actions that fall within the collective responsibility of the Cabinet. The President contended that Minister Buthelezi’s actions “were carefully orchestrated to circumvent the Cabinet process that was under way, and that the Court and the President had been deliberately mislead.

The Court, however, decided that the facts did not warrant the inference that the Minister’s conduct was part of a mala fide scheme of deliberate deception. Rather, given the Minister’s reservations about the Cabinet process, the Minister used the opportunity afforded by the Eisenberg application to publish the regulations.

The Court set aside its Order (to have the regulations published without Cabinet oversight) because the making of the regulations under section 7 of the Act is a matter of collective responsibility of the executive and Cabinet approval is necessary for the making of regulations.

As a direct consequence of this judgment, Minister Buthelezi, the President of the Inkatha Freedom Party, lost his foothold as a Minister in Cabinet. When the President understood that the Minister applied for Leave to Intervene as an opposing party, the President sought punitive costs from the Minister personally. While the Court declined to grant such an Order, it was clear that Minister Buthelezi would never serve in an ANC Cabinet again.

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Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of Home Affairs and Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838 ; 2003 (5) SA 281 (CC)

June 27, 2003

The Minister of Home Affairs appealed directly to the Constitutional Court the Order granted on 21 February 2003 by the Western Cape High Court declaring his immigration regulations to be unlawful, unconstitutional and invalid.

The importance of the Minister’s appeal is reflected by the urgency of the Constitutional Court in hearing the appeal. The application for Leave to Appeal was lodged on 9 April 2003 and the application was set down for hearing on 20 May 2003. Judgement was handed down on 27 June 2003.

Contrary to the High Court, the Constitutional Court decided that the first Immigration Regulations made before the coming into operation of the Immigration Advisory Board did not require public consultation as contemplated by section 7 of the Immigration Act. The Court decided that the regulations promulgated on 21 February 2003, prior to the establishment of the Immigration Advisory Board, were valid and in force.

Interestingly, the Court also affirmed Gary Eisenberg’s standing to bring his challenge to the constitutionality and validity of the draft regulations made by the Minister. It found that Eisenberg had an interest as a member of the public in asserting the right to comment on the draft regulations if section 7 of the Immigration Act was applicable, and also had standing to raise that issue in its own interests. The Court did not make any finding as to Eisenberg’s “public interest” standing.

In his application to the Constitutional Court for Leave to Appeal, the Minister stated that the regulations in dispute were only of a temporary nature and that he had already started the process of making new regulations in terms of section 7 of the Immigration Act, which did invite public comment.

While the Minister’s appeal to the Constitutional Court succeeded, it was a pyrrhic victory. Eisenberg’s challenge to the publication of the first set of regulations in terms of the Immigration Act, which did not invite public comment, had already achieved its purpose. During the litigation process the Minister realized that in order to shield himself from further litigation he would open the section 7 public comment procedure in the making of his final regulations in terms of the Immigration Act.

On the issue of attorneys litigating in their own name, the Court concluded:

“Courts should scrutinize carefully litigation initiated by attorneys in their own name and not on behalf of clients to secure rulings on issues that do not affect them personally. Such practice is open to abuse. In the present case, however, the application was directed to an issue that affected [Eisenberg himself], and to an alleged infringement of its constitutional rights. It quite properly did not seek to recover any costs for its own legal services. Although it is unusual for an attorney to become personally involved in litigation of this nature, there is no reason to treat [Eisenberg] differently to any other litigant seeking to assert a constitutional right.

The issues raised by [Eisenberg] in these proceedings were complex and not lacking in substance …”

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Eisenberg and Associates v Minister of Home Affairs and Others (1301/03) [2003] ZAWCHC 11; [2003] 1 All SA 706 (C)

March 27, 2003

This is the first case in South African legal history which involved an attorney bringing an action against the Government of South Africa in his own and in the public interest. Eisenberg & Associates (Eisenberg) brought an urgent application in the Western Cape High Court on 21 February 2003 seeking an Order to declare the first set of immigration regulations published by the then Minister of Home Affairs Prince Mangosuthu Buthelezi unconstitutional and invalid.

One of the principal issues in the case was Gary Eisenberg’s locus standi to bring such an application. The Court found that Eisenberg was attempting to protect the “rights of all people”, which included the right to participate in the democratic process by being enabled to comment upon draft regulations as contemplated by section 7 of the newly introduced Immigration Act.

Since members of the public, including Eisenberg, should in terms of section 7 of the Immigration Act, have had an unfettered right to express their views on proposed legislation and other statutory amendments, the publication of the immigration regulations prior to public comment, rendered them invalid and unconstitutional. The Court found that there was no alternative way in which redress could be afforded Eisenberg or other interested members of the public and therefore Eisenberg’s locus standi was recognized to bring such action.

Since the immigration regulations were published prior to public comment thereupon, they were declared unconstitutional and invalid by an Order handed down on 21 February 2003.

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Booysen and Others v Minister of Home Affairs and Another

June 4, 2001

This case entails the Constitutional Court’s confirmation of an order of invalidity of the Western Cape High Court

The applicants were foreign spouses of South African citizens who applied for work permits in terms of previous legislation, the Aliens Control Act of 1991. In terms of such Act, applications for

work permits could only be made outside of South Africa. Furthermore, such legislation provided that work permits may only be issued to spouses of South Africans if they did not or were not likely to pursue an occupation in which a significant number of persons were available in South Africa to meet the requirements of its inhabitants.

The Court held that such provision of the Aliens Control Act requiring the foreign spouse to apply for a work permit abroad significantly impaired the ability of spouses to honour their obligations to one another and constituted an unjustifiable limitation of the right to human dignity of both South Africans and their foreign spouses, and on such basis confirmed that the legislation was unconstitutional and invalid.

The Court also held that such provisions of the Act that prevented foreign spouses who were the sole or main provider for their families from fulfilling their duty of support and constituted an unjustifiable limitation of the right to human dignity of both South Africans and their foreign spouses. Such section was therefore confirmed to be unconstitutional and invalid.

The Court suspended the orders of invalidity for 12 months to allow Parliament to correct the inconsistency. Pending the enactment of such legislation or the expiry of the 12 months, the Court directed that the Department of Home Affairs was to accept any application for a work permit made within South Africa by the foreign spouse of a person who was permanently and lawfully resident in South Africa.

Pending the enactment of such legislation or the expiry of the 12 months, the Court directed that the Department of Home Affairs may not refuse to issue, or extend work permits to foreigners espoused to South African citizens of permanent residents unless good cause existed for the refusal to issue or extend such permits was established.

The fact that the foreign spouse pursued or was likely to pursue an occupation in which a sufficient number of persons are available in South Africa to meet the requirements of the inhabitants of South Africa shall not be taken into account for determining the existence of good cause.

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Makinana & Others v Minister of Home Affairs & Another; Kilty & Another v Minister of Home Affairs & Another

February 8, 2001

This is the seminal case which founded the “spousal” visa, with work authorization.

Together with Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (2000) (3) SA 937 (CC) this case established South Africa’s immigration regime for foreign spouses of South African permanent residents and citizens. Judge Belinda van Heerden’s judgment constitutes one of South Africa’s most authoritative judgments in administrative and immigration law.

The Applicants sought an Order from the Western Cape High Court declaring provisions in the Aliens Control Act of 1991 (which was repealed by the coming into force of the Immigration Act on 7 April 2003), unlawful and unconstitutional thereby allowing foreign spouses to apply for work permits in South Africa without having to do so from their countries of origin. Moreover, the Applicants sought to impugn those provisions of the Aliens Control Act which subjected the foreign spouse to an economic needs test in the application for a work permit. The Applicants were successful.

The story of “Makinana” is itself a fascinating tale of intrigue. Gladys Makinana, purporting to be a South African citizen, espoused to Ibrahima Ba, a citizen of Senegal, turned out to be an imposter using a false South African Identity Document. The Judge severed the first two Applicants (Makinana and Ba) from the class of Applicants, and on this basis Judge van Heerden’s Order went to the Constitutional Court for confirmation as Booysen & Others v Minister of Home Affairs & Another.

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