This is an application in terms of section 172(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (the Constitution) to declare as invalid and inconsistent with the Constitution, Regulation 9(9)(a) of the 2 Immigration Regulations (regulations) issued in terms of section 7 of the Immigration Act, 2002, (the Act) to the extent that the rights accorded by means of the exceptional circumstances contemplated in section 10(6)(b) of the Act are not extended to the foreign spouse or child of a citizen or permanent resident. The application is opposed by the first and second respondents.
Various cases we have worked on.
The applicants seek a declaration that the first respondent, the Director- General of the Department of Home Affairs, is in contempt of an order of this court granted by Van Staden AJ on 18 May 2012 (“the order”); alternatively, a declaration that the Director-General’s failure to comply with the order is inconsistent with the Constitution and unlawful. In addition, an order is sought that the first and fourth applicants within one week file certain internal appeal applications, which applications are to be determined by the respondents within one month of date of the order.
The Supreme Court of Appeal (by a majority) set aside the appellant’s conviction of rape and substituted a conviction of indecent assault. His sentence of life imprisonment was altered to one of ten years imprisonment. The court criticised the officials who had failed to assist the appellant in pursuing his appeal, with the result that it took five years for his application for leave to appeal to be heard and further three years before the appeal cold be heard. In the result the appeal was only disposed of after the appellant had already served eight years of his sentence.
The appeal succeeded because of the inconclusive nature of the complainant’s evidence as to the precise nature of the assault perpetrated on her and the equivocal terms of the doctor’s report. The court stressed that unless the doctor’s report is unequivocal in its terms and accepted a correct it is desirable to call the doctor as a witness and not simply to hand in the medical report by consent. Only by the doctor giving evidence can the court be informed of the nature and effect of the doctor’s observations and conclusions from the examination of the complainant. The failure to call the doctor as a witness, where the medical report is equivocal, may lead to an injustice either to the complainant or to the accused.
The 1st and 5th applicants who are immigration practitioners (‘the applicants) seek certain amended procedural relief from the respondents. The relief sought by the
2nd to 4th applicants (who were affected individuals) has fallen away. The nature of the relief sought is to compel the respondents to: (a) determine certain outstanding temporary residence permit applications and/or review applications and/or administrative correction applications within 30 days; (b) determine any subsequent review and/or administrative correction applications which might arise from applications relating to the outstanding temporary residence permit applications within 6 weeks of submission thereof; and (c) obtain, at the respondents’ expense, any applications misplaced by them in order to give effect to the aforegoing.
This matter was triggered by an order being granted by this Court on 6 November 2011. The background was as follows: While on duty, I was contacted by Mr Gary Eisenberg, who had obtained my telephone number – correctly I might add – from the duty registrar.
Mr Eisenberg informed me that an Uzbekistan citizen, Ms Violetta Mukhamadiva had been detained by immigration officials after arriving at Cape Town International Airport aboard a Turkish Airline flight. He further informed me that it was the intention of the officials to refuse Ms Mukhamadiva entry and to place her on a departing aircraft. This was being done in the face of a valid visa which had been issued to her in Ankara, Turkey.
The main judgment in this matter was delivered on 24 August 2010.1 A provisional order was made by this Court on its own accord directing the Minister for Justice and Constitutional Development (Minister) on the one hand, and Cape Dance Academy International (Pty) Ltd as well as House of Rasputin Properties (Pty) Ltd (jointly referred to as the “employers”) on the other, to each pay half of the applicant’s (Ms Malachi’s) costs in this Court. 2] These parties were afforded the opportunity to make written representations on whether the proposed order was just and equitable. Representations have been made. It is time to determine whether or not the provisional order should be made final. A synopsis of the representations is necessary and follows.
On Tuesday 24 August 2010, the Constitutional Court delivered a judgment confirming an order of constitutionality invalidity made by the Western Cape High Court, Cape Town (High Court). The High Court had declared the procedure of arrest tanquam suspectus de fuga in terms of section 30(1) and (3) (the impugned provisions) of the Magistrates’ Courts Act, 1944 unconstitutional and invalid.
The procedure empowers a magistrate to make an order for the arrest and detention of an alleged debtor at the instance of a creditor who is owed R40 or more and reasonably suspects that the debtor is about to flee the country to avoid the adjudication of the dispute.
The applicant is Tatiana Malachi, a citizen of the Republic of Moldova. She was recruited by Cape Dance Academy International (Pty) Ltd and Rasputin Properties (Pty) Ltd (the employers) from Moldova to work for them as an exotic dancer.
This is an extraordinary case in which relief of an extraordinary nature is sought: the President of the Republic of South Africa (“the President”) applies for the rescission of an order this Court made on 8th March 2004 by agreement between the Minister of Home Affairs (“the Minister”) and Eisenberg and Associates (“Eisenberg”) under case number 1589/2004 in an urgent application in which the Minister was the respondent. The President also seeks an order setting aside and declaring invalid certain regulations published by the Minister on 8th March 2004 which were due to come into effect on 7th April 2004.
At the outset it should be stressed that the case is not concerned with the merits of the content of the regulations.
The matter was argued before me on Monday 5th and Tuesday 6th April 2004. At the hearing, Mr M Donen SC and Ms K Pillay appeared for the President, Mr D Unterhalter SC and Ms AM Annandale for the Minister, and Mr A Katz for Eisenberg.
By reason of the fact that the regulations were due to come into force and effect on 7th April 2004, the proceedings were conducted under severe constraints of time. The Court was obliged to come to a decision on the orders sought by the President not later than midnight on 6th April 2004. I am indebted to the legal representatives of the parties for the manner in which they dealt at short notice with a wide range of issues, including issues of constitutional importance.
The judgment delivered this morning relates to the powers of the Minister of Home Affairs (the Minister) to make Immigration Regulations under the Immigration Act 13 of 2002 (the Act). In the High Court, Eisenberg & Associates had challenged the legality of regulations made by the Minister on the grounds that he had made these regulations without complying with the public notice and comment procedures prescribed by the Act. This contention was upheld by the High Court, and the regulations were declared to be invalid. The Minister appealed to the Constitutional Court against this decision. In a judgment concurred in by all the other members of the Court, Chief Justice Chaskalson upheld the appeal and set aside the declaration of invalidity that had been made by the High Court.
This is an application for a declaratory order invalidating the Immigration Regulations made by the first respondent and published in the Government Gazette No 24952 (Notice 487 of 2003) on 21 February 2003. The application was brought on an urgent basis and sought an order declaring the said regulations to be unlawful and inconsistent with the Constitution of the Republic of South Africa, Act 108 of 1996, and hence to be invalid. In addition an order was sought requiring the first respondent, in making immigration regulations, to comply with the provisions of section 7 of the Immigration Act 13 of 2002. Finally the applicant sought an order that the first respondent bear all disbursements incurred by the applicant, including those consequent upon the employment of two counsel.