“It gives me great pleasure to bear testimony to the work and deeds of Mr Gary Eisenberg. It is often difficult to believe anything complimentary said about someone else. However, credence can be given to compliments paid by an enemy or opponent. Mr Eisenberg and I have never been enemies, but we were cast by history into the role of opponents. In our respective roles we both worked to forge our country’s history. What I did for ten years in my former capacity as Minister of Home Affairs might not be well known, but it is on record. This celebration offers us the opportunity to place on record Mr Eisenberg’s contribution, which is worth mentioning because of what he did for our country and the example it may set for the entire legal profession.
What I have to say would not be fully appreciated without a few introductory points of departure.
Mr Eisenberg has always been genuinely committed to the consolidation of the rule of law and the upgrading of our legal system as a means to improve the overall matrix of our society. For this reason I have always respected him, for I share the same unwavering commitment to promote the rule of law as a means to better our still highly flawed, imperfect and unjust society.
Mr Eisenberg chose the field of immigration law. I didn’t; but I ended up with the responsibility of attending to it. When in 1994 I was given the portfolio of Home Affairs, I found myself in a legal quandary, a policy vacuum and an administrative nightmare. This was the context in which the rights, duties and obligations of people interfacing with our immigration systems had to be dealt with.
Our new democratic Constitution, both in its interim and final forms, had provided an extensive policy framework for most fields of government activity. This general policy framework was detailed in the Reconstruction and Development Programme, which gave direction to the various processes of policy formulation embodied in the many green and white papers produced by our Government, which then formed the basis for legislative enactments. However, there was nothing in the Constitution or the RDP which would give a direction towards deciding whether our country should have an open or closed door policy in respect of immigration and how the entire matter should be structured and pursued.
In addition to the policy vacuum, there was no administrative infrastructure to support the immigration function. The pre-liberation South Africa had a miniscule immigration function based on an ancient and arbitrary law which lent itself to being applied in such manner that most of those who qualified for its benefits would be White, Anglo-Saxon Protestants. As liberation came, immigration was the only function which grew by a factor of 125 times, as millions of people poured into South Africa as tourists, businessmen or workers and sought the benefits of immigration legislation.
There has been nothing like this in the other line functions, where the aggregation of the henceforth divided governments, including TBVC states and self-governing territories, provided the same number of schools and classrooms for the same number of children, the same number of hospital beds and doctors for the same number of patients, the same number of policemen for the same population base, and so on and so forth. They were confronted with the need to re-prioritise and reallocate resources to overcome the disparities of apartheid, but started with an aggregate administrative basis which was generally adequate to do the job and with legislation which was generally adequate to support the administrative function, albeit it had to be changed to adjust to the new policies.
I took office in a context in which foreigners were looked upon with hostility. My Department saw its main role as that of keeping people out. The general rhetoric was that foreigners exploited our scarce resources without providing any significant contribution, and were responsible for criminal activities. There were no analytical tools, dedicated NGOs or research facilities to provide the methodology and processes to test these prejudices.
Into all this came Gary Eisenberg, armed with his faith in the rule of law and the provisions of the Constitution. He took me to court time and again, and time and again he won. Entrusted as I was with the responsibility of executing the law then on the books, in the beginning I fought him and hoped to defeat him. But then I realised the inequity of the law and, even though I was called upon to resist his actions, in my heart I supported them, while I began promoting a comprehensive revision of the law.
One of the first legal problems was that the law governing migration control was secret. The Aliens Control Act contained only scant and enigmatic provisions, while the actual law spelling out the criteria, requirements and provisions under which immigration permits could be granted were detailed in a 600 page internal document called the Immigration Code or Consular Code. Any officer receiving it had to sign a statement swearing to keep it secret. Eisenberg challenged the constitutionality of this practice and, in so doing, brought it to my direct attention.
I instructed my less-than-cooperative then Director-General to make the document public, and this was not done for several months. My third instruction was responded to with a letter from my Director-General in which he openly refused to comply, stating three grounds. First, that if the document became public, applicants would adjust their circumstances to meet its requirements and therefore gain the sought-after immigration benefits. Second, that if the document was published people like Eisenberg would sue the Department every time the Department did not comply with its own prescriptions. Third, if published, the Department could not change the law easily anytime it wanted to. Besides being a theorem of autocracy, the letter clearly identified Eisenberg as the Department’s nemesis and grand opponent. This gave me great sympathy for this lonely voice of reason.
In the end, I succeeded in making the Immigration Code public by announcing my instruction in Parliament, which forced my Director-General to stop defying me.
But that was just the beginning. One piece of litigation after another undermined the entire system of migration control, breaking down the inequity and injustice built into it. Many of them were constitutional challenges brought by Mr Eisenberg who often used Advocate Anton Katz, who really must receive a special mention and recognition for what he did.
The constitutional litigation in the field of migration control had an enormous impact on the rest of the legal system. Because of these challenges, the courts recognised the right of South African spouses to see their foreign spouses receiving permanent residence. Additional litigation extended this benefit first to heterosexual life partners and then to homosexual life partners, creating the basis on which the recognition of life partnerships of both a heterosexual and a homosexual nature became a cornerstone of our legal system also in respect of other fields.
I must mention that when this challenge of constitutionality was brought against my Department, we realised that we were wrong in prohibiting the recognition of life partnerships and brought the matter to Cabinet to seek authorisation to concede, but we were specifically instructed to resist. When we lost, I was specifically instructed to appeal, with a corollary request by Minister Asmal that I should pursue the appeal as energetically as possible, in spite of my having submitted to Cabinet two senior counsels’ opinions that the case could not be won. In the end, we lost and the advocates of constitutionalism like Mr Eisenberg won.
I could mention many cases bought by Mr Eisenberg which broadened the spaces of freedom and liberty for all South Africans, but such discussion would be more suited to a book than to the brevity to which I have committed my remarks. Nonetheless, I want to mention two cases which are of importance for our jurisprudence. Again, a few premises are necessary.
In formulating the Immigration Act I tried to do more than create an objective, efficient and just system of migration control. I also tried to create a good piece of legislation which could set an example for how the rule of law can be enhanced by Parliament, rather than undermined.
The Immigration Act was the end result of a five year process of policy formulation, which really started as an open-ended process. We had no preconceived ideas and, unlike other pieces of legislation, we did not first decide what the policy should be and then begin a green and white paper process to give legitimacy to our decision. The Bill was produced by experts, stakeholders and role players through a process of extensive consultations which included two international conferences. The Bill never went through any political party structures and was never vetted by them, which perhaps was what made it so controversial and spelt out its final downfall.
During this process we came to realise that a regulated open policy for migration is good for South Africa. We saw the absurdity of a system which is impotent and hopeless in respect of the millions of people who are illegally in the country, but harsh and unaccommodating in respect of the few who apply for permits. Our policy was that of opening the front door to legal migration, while closing the back door to the illegal one.
We realised that in the field of migration control, like in many others, the actual content of the law ends up being set out in the details of regulations prescribing the qualifications, the amount of money or the burden of proof needed for a permit. By changing these thresholds one can change the entire system with no parliamentary intervention. In migration control more than in other fields, both the devil and God were in the details set out in regulations. In our tradition, usually Acts authorise Ministers to write regulations and usually a Minister can do whatever he or she wants in respect of it, for as long as he or she does not exceed their statutory authority. For as long as one does not go ultra vires, there is no review or assessment of the actual content of regulations. This seemed to be iniquitous and irrational, especially in a field in which a department carried a legacy of hostility towards foreigners.
We looked around and discovered how, in advanced democracies, regulation-making has not been left to the discretion of Ministers for almost 70 years and is conducted by regulatory agencies. Therefore, in our Bill we made provision for the regulations to be drafted by two players, namely the Immigration Board – in which all relevant stakeholders were represented – and the public, with no involvement of the Minister. The Immigration Board would need to receive public comments and produce regulations, the rationality of which could also be assessed by a court of law on the basis of the comments received. The Minister would have no input.
Cabinet changed this schema by turning the Board from a regulatory agency into a merely advisory one, returning the power of regulation-making to the Minister. However, because of my pressures, Cabinet agreed to maintain the regulation-making process in a manner which forces the Minister to produce regulations which were consistent with the advice of the Board and which took into account the public inputs. This was achieved through a two-stage process of public comments. In the first stage, the notice of intention to draft regulations with the contents thereof had to be published first and be followed by actual draft Regulations. In the second stage, the Minister would publish final regulations along with a summary of all the comments received and a justification why he or she departed from the comments of the public or the advice of the Immigration Advisory Board. This restricted the ministerial discretion enormously, as courts of law were empowered to assess whether the rationale given by the Minister was arbitrary or capricious against the comments received and void the regulation if it was. This may seem cumbersome, and yet it is the way in which regulations have been made for many decades in countries like the United States.
I apologise for this lengthy introduction which now enables me to come back to Mr Eisenberg. A provision in the Immigration Act enabled me to issue the first set of interim regulations without following the process I described and merely to get the ball rolling. When I did so, Mr Eisenberg took me to court stating that I had no such power. To the best of my knowledge that was the first public interest law suit brought by a lawyer, not on behalf of a client, but in the general interest of the rule of law and the South African people.
It was a most annoying and irksome action, but a most admirable one.
Mr Eisenberg, with the valiant assistance of Advocate Anton Katz, spent his own money and effort to make a point in the general interest. He won at the High Court level and we appealed directly to the Constitutional Court. This appeal was a watershed event, because on this occasion the Constitutional Court not only recognised Mr Eisenberg’s locus standi, thereby setting a general rule for public advocacy litigation, but went one step further. For the first time, the Constitutional Court asserted its jurisdiction on the validity of subordinate legislation and even administrative actions, and held that the validity of a regulation was a constitutional issue within its jurisdiction. The facts of the case almost forced such holding, because if the regulations were invalid, there would have been a huge lacuna due to the Immigration Act being incapable of being implemented without regulations. Nonetheless the holding of the court was of general application and the legal fraternity and the South African people now have an opportunity to resort to constitutional justice, which is much greater than in most other countries. We owe this to Mr Eisenberg.
Mr Eisenberg lost the case and my interim regulations came into force.
But he did not give up his self-assumed role of watchdog over my actions and those of my Department. I must say, in many respects, the legal oversight which I, as Minister of Home Affairs, received from Mr Eisenberg was more intense, competent and productive than what I received from the parliamentary portfolio committee. In this respect Mr Eisenberg has given an example which ought to be followed by the entire legal fraternity of how lawyers can protect our democracy and hold Ministers accountable through the judicial process. Every time Mr Eisenberg felt that my Department was getting out of line, he would sue, and I praise and admire him for that.
He was not deterred by the fact that in the end he lost his first challenge on the Immigration Act in respect of the interim regulations and soon brought an even more momentous one. Again, a few words of background.
Mr Eisenberg was one of the main participants in the regulation-making process. He made enormous contributions in criticising the interim regulations and I had to spend long nights reading what he wrote, and agreeing with him where I had to, and labouring on a reply or comment where I could not see my way clear to go along with his suggestions. He was not the only one. We received many contributions from people like Advocate Katz, Julian Pokroy, Chris Watters and Julia Willand, and from various organisations such as Cosatu, Business South Africa, chambers of commerce and other trade unions, to name but a few.
To understand the unique nature of this process, one must think about the following. First a most representative and qualified body such as the Immigration Advisory Board went through the regulations line by line and expressed extensive comments on the record. Then a senior Minister of State like me had to burn the midnight oil with my officials and advisers going meticulously through each submission to assess their value and provide comments and reply. I went through this process with the involvement of my entire Department. A special task team was set up to advise me on each of the submissions. This team was led by the meticulous work of Mr Claude Schravesande, who acted under the indefatigable supervision of the ever loyal Mr Ivan Lambinon and Mr Awie van der Westhuizen.
I could never have been able to weather the storms that I was obliged to weather in the Home Affairs Ministry only with my team in the Ministry and without the genius of my Special Advisor Dr Mario Gaspari Oriani-Ambrosini. I always called him jocularly “my AK-47 Rifle”. My grandfather Mkhandumba Buthelezi participated in the battle of Isandlwana in the Anglo-Zulu War of 1879 and he survived. I have more seriously compared what Dr Mario Ambrosini was to me to the cowhide shield that protected my grandfather during that battle of Isandlwana.
I had worked with Dr Ambrosini since the time of the Kempton Park negotiations. When I took over the Ministry of Home Affairs in 1994, I appointed him as my Special Advisor. Ministers were entitled to appoint two Special Advisors and Dr Ambrosini did the work of two Advisors for the ten years that I was Minister. As a Believer I believed that he was one of God’s gifts to me. He was hated because he literally became my impenetrable shield. I am sad to state that he still bears the brunt of having been my Special Advisor up to this day.
At the end of this process I was ready to issue the final regulations, which were indeed the greatest exercise of participatory democracy in our country known to me. As I was required by practice, I brought the draft regulations to Cabinet for it to note them. However, most of what I did was not trusted by my Cabinet colleagues who felt they had to have their own Departments reviewing it, even if they had no qualification in the matter. Accordingly, Cabinet set up a cumbersome political process to rewrite the regulations. This was obviously inconsistent with the Immigration Act which prescribed that the regulations had to emerge from public inputs and the Immigration Advisory Board, and not the political dictates of Cabinet Ministers with no line function responsibility over migration.
The law and the process it set were being subverted under political pressure. I protested the matter, but could not go public because of Cabinet secrecy. Fortunately, a parliamentary question enquired why the final regulations were been delayed in spite of the process having been completed and my having promised the Constitutional Court that the interim regulations would be replaced in a year. That question gave me the opportunity to spill the beans. But Parliament did nothing about it. The one who rose to protect the integrity of the rule of law was Mr Eisenberg.
Mr Eisenberg brought an action before the High Court for an interdict to compel me to issue the regulations as they were finalised through the process of public participation and without any political manipulation from Cabinet. Recognising the validity of his point, I decided to abide by the decision of the Court and a preliminary interdict was issued forcing me to publish the regulations, which I did on the 8th of March 2004. These 8 March 2004 Immigration Regulations remain a unique example of how public input was taken into account in a truly participatory process.
What followed was one of the most intriguing chapters in our legal history. The President intervened to interdict the coming into force of the Regulations, claiming their invalidity because the Cabinet process was not complete and they had no Cabinet approval. I resisted the President’s action and the President sought to hold me personally liable for the cost of the action. I am not aware of any world precedent in which a President not only sued his own Minister, but went so far as trying to get a cost order against him in his personal capacity.
Mr Eisenberg was in the thick of this legal battle, this time not opposing me, but the very President of our country. It takes some guts, courage and determination to do that. The battle was not completed because the April 2004 elections intervened and I was no longer in the position of appealing the favourable decision received by the President. Albeit published in the Gazette, the democratic and participatory Immigration Regulations never came into force. The interim regulations stayed in force until, under the leadership of the new Minister, the Act was amended to repeal the entire requirement that regulations should be made with the necessary participation of the pubic. The minister was restored in his or her unfettered regulatory discretion.
Mr Eisenberg’s action may have changed the course of our political history. Mere days before elections, the President was suing me both in my ministerial and personal capacities. A few days after elections, the President chose not to invite me again to join his Cabinet, which led my Party to no longer be part of a coalition Government. Anyone may draw the conclusion they wish in respect of the connection between these two events, which are in such close proximity of time.
Personally, I do not mind, because throughout my life I have always done what I felt was right irrespective of the consequences. But this occasion is not about me, but rather about Mr Eisenberg. In this respect, the story I have now publicly disclosed signifies how the courage of a single man can indeed make a difference in the course of human events. Mr Eisenberg is proof that no-one should feel hopeless when confronting injustice and that a single person armed with the sword and shield of the law can indeed make a significant difference to the greater common good.
I hope his example will be followed more widely and I look forward to following the developments of Mr Eisenberg brilliant legal career. I understand that he has recently been appointed as Vice-Chairperson of the Immigration Section of the International Bar Association. This brings prestige to our country and I hope that Mr Eisenberg will be able to make a positive contribution there.
As you continue to serve our Country and all its people, I hope that you will now be able to have someone you can do business with in the person of Mr Mavuso Msimang the newly appointed Director-General. Although his liberation struggle credentials are impeccable, I can assure you that he is not obsessed with them. To him it is the now and the future which matter, rather than the past. I know him and I have full confidence in him. I congratulate the Minister for appointing such a dedicated South African as the Accounting Officer of her department. I hope that his occupation of that post will make your burdens and those of your other colleagues in the legal fraternity lighter, as you continue to serve your Country. I can only hope that my speaking in this vein about him will not amount to a kiss of death.
Migration may bear in the 21st century almost the same importance that human rights did in the 20th century. There is a huge amount of theoretical work which needs to be done to develop this field. Possibly, from the liberalisation of worldwide migration, a new, more just and more humane world society may finally emerge. The new Minister of Home Affairs has effectively emasculated and collapsed the Immigration Advisory Board which nonetheless carries the motto of Aperire Terram Gentibus, which means “Open the Land to the People”. One day the development of migration control may finally assert the prominence of the people of the world over the many governments, potentates and oppressors which claim to rule them.
In this respect, as my life experience draws closer to its inescapable end, I am heartened that there are courageous people like Mr Gary Eisenberg who can carry forward the vision of freedom and democracy which has for many centuries inspired so many battles around the world.
This vision, I promise you, is far from being accomplished and is now more than ever in great jeopardy. Therefore, I hope that not only Mr Eisenberg, but all the lawyers present here this evening, will continue to act as vigilant watchdogs over our fledgling democracy.
I thank you.”
– Keynote address by Prince Mangosuthu Buthulezi, MP Former MINISTER OF HOME AFFAIRS
TableBay Hotel, Cape Town