Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: van Heerden AJ
• Judgment Date: 21 September 1999
• Counsel: Anton Katz (with him PBJ Farlam) for the applicants JC Heunis (with him RF Van Rooyen) for the respondents
• Docket Number: 12745/98; 13503/98; 13435/98
• Court: Cape Provincial Division

Van Heerden AJ:

Introduction

There are three separate applications before this Court (case Nos I 12745/98, 13503/98 and 13435/98). Because of the overlapping of the constitutional issues raised and of certain of the heads of relief claimed, these three applications were set down for hearing together before the same Judge. The first and third applications relate to the constitutionality or otherwise of the following fees: J

Van Heerden AJ

(i)

the fee (R7 750) prescribed by item 13 of the annexure to reg A 2 of the Schedule to the fifth amendment of the Aliens Control Regulations (Fees), published under Government Notice R461 (Government Gazette 18791) of 30 March 1998 (which came into operation on 1 April 1998);

(ii)

the fee (R10 020) prescribed by item 16 of the annexure to B reg 2 of the Schedule to the sixth amendment of the Aliens Control Regulations (Fees), published under Government Notice R386 (Government Gazette 19881) of 25 March 1999 (which came into operation on 1 April 1999),

in each case to the extent that such fee applies in respect of an C application for an immigration permit in terms of s 25(1) of the Aliens Control Act 96 of 1991 (as amended) (the Act) by the alien spouse of a person permanently and lawfully resident in South Africa (a South African permanent resident).

Both the abovementioned amendments were made by the first D respondent in terms of s 56(1)(f) of the Act, in each instance substituting (with effect from the stipulated date) the original reg 2 of the Aliens Control Regulations (Fees), published under Government Notice R1000 (Government Gazette 17254) of 21 June 1996. In terms of s 56(5) of the Act, '[a]ny fees which may be prescribed under ss (1) shall be prescribed by the E Minister [of Home Affairs] with the concurrence of the Minister of Finance'. It was for this reason that the Minister of Finance was cited as the third respondent in the first application (case No 12745/98).

In addition, the second and third applications challenge the constitutionality of s 25(9)(b) of the Act to the extent that this section empowers the relevant regional committee of the F Immigrants Selection Board (established in terms of s 24(1) of the Act) (the Board) to authorise the issue of an immigration permit to the alien spouse of a South African permanent resident only if the alien spouse 'has been permitted under s 26(1) to temporarily sojourn in the Republic'. The third application also brings into question the precise meaning of reg 14(2) of the Aliens Control G Regulations made by the first respondent in terms of s 56 of the Act, published under Government Notice R999 (Government Gazette 17254) of 28 June 1996 (the Aliens Control Regulations) and the constitutionality of this regulation if, and to the extent that, it precludes an application for an immigration permit being 'made' by the alien spouse of a South African permanent H resident while the applicant concerned is physically present in South Africa but has not 'been permitted under s 26(1) to temporarily sojourn in the Republic'.

The factual background

In all three applications before this Court, certain disputes of fact I arise on the affidavits filed. None of these disputes of fact is, however, material in the sense that it affects the substantive relief claimed by the applicants in the case concerned. I shall therefore apply the time-honoured principles articulated by Corbett JA (as he then was) in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C by approaching each application on the basis of those facts J

Van Heerden AJ

averred in the applicants' A affidavits which have been admitted by the respondents, together with the facts alleged by the respondents. In instances where the denial by the respondents of a fact alleged by the applicants does not raise 'a real, genuine or bona fide dispute of fact' and I am satisfied as to 'the inherent credibility' of the applicant's factual averment, the relevant fact will be included amongst those upon B which I determine whether the applicants are entitled to the relief sought. Moreover, certain allegations or denials of the respondents (such as, for example, the denial by the respondents in case No 13435/98 (the Thomas application) that Mrs Thomas left South Africa for St Helena Island in October 1994 and returned to South Africa from St Helena in August 1996) are so clearly untenable that C they can be rejected merely upon the papers before the Court (see further Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4th ed (1997) at 240, 393 and 1080 - 1).

The material facts and the history of the pleadings in or related to each of the three applications before the Court are as follows: D

Case No 12745/98 (the Dawood application)

The first applicant (Mr Dawood) is a South African citizen by birth and is permanently and lawfully resident in South Africa. He has lived in Cape Town since 1991 and presently works as a watchmaker, earning a E gross salary of approximately R3 000 per month. He married the second applicant (Mrs Dawood) according to Islamic law on 4 October 1997. Subsequently, on 27 October 1997, the applicants were married according to the South African civil law (in terms of the Marriage Act 25 of 1961, as amended). Both forms of marriage still subsist and Mrs Dawood gave birth to their first child, a daughter, on 11 March F 1999. Although there is a dispute between the parties concerning the date upon which Mr and Mrs Dawood met each other for the first time, I shall assume in favour of the respondents that this meeting took place in late August 1997. As indicated above, this dispute does not G affect the substantive relief claimed by the applicants one way or the other.

Mrs Dawood is not a South African citizen and does not hold an immigration permit in terms of s 25 of the Aliens Control Act. She is a national of Thailand and entered South Africa at Johannesburg International Airport during February or March 1997 'for holiday purposes'. Upon such entry into the country, she was granted a H temporary residence permit (presumably 'a visitor's permit' in terms of s 26(1)(a) of the Act), which permit was valid until 30 April 1997. This temporary residence permit 'for holiday purposes' was extended (presumably in terms of s 26(6) of the Act) for three further periods, two of which extensions were granted after the expiry of Mrs Dawood's then current permit. It was apparently 'a I condition' of the third such extension that Mrs Dawood pay the sum of R5 831 to the Department of Home Affairs or furnish a bank guarantee for that sum (see s 26(4)(a) of the Act). On 17 November 1997 the Bellville Branch of Volkskas Bank furnished such a bank guarantee to the department and, on 12 December 1997, Mrs J

Van Heerden AJ

Dawood's passport was endorsed to the effect that her temporary A residence permit was extended until 12 June 1998.

During December 1997 Mr and Mrs Dawood collected the necessary application form for an immigration permit in terms of s 25 of the Act from the Cape Town regional office of the Department of Home Affairs. On 26 December 1997 Mrs Dawood left South Africa for Thailand, B returning on 12 January 1998. This trip was apparently in order to enable her to obtain the police clearance certificate which has (together with other documents) to accompany the application form for an immigration permit (see p 4 of form No BI-947 [IM 9E (i)] as issued by the Department of Home Affairs). On her return to South C Africa, a 'new' temporary residence permit 'for holiday purposes' was issued to Mrs Dawood, valid until 12 February 1998. During June 1998 (ie after the expiry of this permit), Mrs Dawood applied for an extension thereof. On 2 July 1998 the permit was extended until 31 July 1998. Thereafter this permit was D extended for two further periods, the first such extension expiring on 31 July 1999 and the second such extension (granted after the application had been heard by this Court) to expire on 31 December 1999.

Meanwhile, on 10 June 1998, Mr and Mrs Dawood attempted to submit Mrs Dawood's application for an immigration permit to the Cape E Town regional office of the Department of Home Affairs. However, as the application was 'incomplete' in certain respects (including the absence of the necessary police clearance certificate), such application was not accepted ('received', to use the terminology of s 25(2)(a) of the Act) by the representatives of the department. Mrs Dawood was also informed by such representatives that, if her application for an immigration permit was submitted after F 30 June 1998, she would have to pay a non-refundable fee of R7 750 together with such application. (I will deal with the legislative background to this fee requirement in greater detail below.)

Following a further meeting between Mr and Mrs Dawood and representatives of the department on 23 June 1998 (at which the G latter once again refused to accept Mrs Dawood's application for an immigration permit 'as a police clearance certificate was still outstanding'), the Dawoods addressed a letter to the Pretoria head office of the department, requesting an exemption from the requirement of payment of the prescribed fee. This request was denied in terms of a facsimile transmission dated 30 June 1998, addressed to the H Dawoods on behalf of the second respondent. According to this letter, 'no exemptions can be made to individuals regarding payment of the fee in question as it was approved by Cabinet, the Treasury and promulgated in the Government Gazette' and 'the fee payable is in line with Government policy of self-compensatory and usury (sic?) I charges for the services rendered. This is also in keeping with international...