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: Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
• Judgment Date: 07 June 2000
• Citation: 2000 (3) SA 936 (CC)
• Docket Number: CCT 35/99
• Hearing Date: 23 March 2000
• Counsel: W H Trengove SC (with him Anton Katz and P B J Farlam) for the applicants. No appearance for the respondents.
• Court: Constitutional Court

O'Regan J:

Introduction F

[1] All three cases before us concern the circumstances in which foreign spouses of South African residents are permitted to reside temporarily in South Africa pending the outcome of their applications G for immigration permits. In each case the applicants are married to each other. One spouse is permanently and lawfully resident in South Africa while the other is seeking to obtain an immigration permit to reside permanently in South Africa. Because the matters raised similar issues they were heard together by the Cape of Good Hope High Court [1] and by this Court. H

[2] In terms of the Aliens Control Act 96 of 1991 (the Act), a person who is not a South African citizen may not enter or reside in South Africa without a valid permit. Permits may be issued on a temporary basis for a variety of purposes, including holiday visits, business, employment, or I

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study, [2] or on a permanent basis. [3] Permanent permits or 'immigration permits' authorise a person to reside permanently in A South Africa. The non-South African spouse in each of the cases before us is seeking to obtain an immigration permit.

[3] There were two principal issues raised by the three applications in the High Court. The first related to a non-refundable fee payable by applicants for immigration permits when they lodge their applications. This fee was introduced, in effect, in 1998 and set at B R7 750. [4] A year later it was increased to R10 020. [5] The applicants sought an order declaring that, insofar as spouses were concerned, the regulations providing for these fees were inconsistent with the Constitution and C invalid. The second issue concerned s 25(9)(b) [6] of the Act and, in particular, the question whether it was constitutional for the Act to require that an immigration permit could be granted to the spouse of a South African citizen who is in South Africa at the time only if that spouse is in possession of a valid temporary residence permit. D

[4] The Cape High Court upheld the applicants' arguments in respect of both issues and made an order declaring the relevant fee regulations and

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s 25(9)(b) of the Act to be invalid. Both these declarations of invalidity were suspended, the first for three A months and the second for 12 months. The Court also granted consequential relief. The facts of the three applications appear in full from the judgment of Van Heerden AJ. I shall therefore only set out the key facts in this judgment.

The Dawood application B

[5] Mr and Mrs Dawood, the first and second applicants, were married according to Islamic law on 4 October 1997 and they have one child, a daughter, who was born on 11 March 1999. Mr Dawood, a South African citizen, is a watchmaker who earns approximately R3 000 per month. Mrs Dawood, a Thai national, is presently unemployed. She C entered South Africa early in 1997 for a holiday and was granted a temporary residence permit valid until 30 April 1997. This permit was subsequently extended three times. In December 1997, shortly after their marriage, Mr and Mrs Dawood obtained application forms for an immigration permit for Mrs Dawood to obtain permission to reside D permanently in South Africa. These forms required the submission of a police clearance certificate from Thailand. It apparently took some time for Mrs Dawood to obtain this certificate. When she returned to the Department of Home Affairs (the department) in June 1998, she was informed that if a complete application for an immigration permit was E not submitted before 30 June 1998, she would be required to pay the non-refundable fee of R7 750 that had recently been introduced by regulation. [7] As she was not at that stage able to submit a completed application, the Dawoods sought an exemption from payment of this fee. An exemption was refused and the Dawoods then approached the High Court for relief. They sought, in particular, an order declaring the regulations that imposed the fees (both the earlier F regulation setting the fee at R7 750 and the subsequent regulation increasing it) to be inconsistent with ss 9, 10, 21(3) and 28 of the Constitution and therefore invalid.

The Shalabi application G

[6] Mr and Mrs Shalabi married according to South African civil law on 7 May 1996 in Cape Town and they have one child, a son, born on 11 January 1999. The first applicant, Mrs Shalabi, is a South African citizen employed as a staff nurse earning approximately R2 800 per month. Mr Shalabi is an Egyptian citizen. He first entered South H Africa on 16 November 1995 and was granted a temporary residence permit. On several occasions thereafter Mr Shalabi was granted further temporary residence permits. The details of the grant of these permits need not be set out, save to say that on several occasions Mr Shalabi was granted an extension of his temporary residence permit even though I his application for that extension was made only after the permit had expired. On 2 September 1997, while in possession of a valid temporary residence

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permit due to expire only on 31 December 1997, Mr Shalabi applied for an immigration permit. At the time, he was given A a notice by the department stating that, even though he had made an application for an immigration permit, he was required to ensure that his temporary residence permit did not lapse. [8] In April 1998, after his permit had expired, Mr Shalabi was informed by the department that his application for an immigration permit could not be processed unless he applied for an extension of his temporary B residence permit. On 9 July 1998 Mr Shalabi made such an application which was refused on the grounds that he was illegally in South Africa and he was ordered to leave South Africa by 11 August 1998. Mr Shalabi then sought the assistance of a Member of Parliament who took the matter up with the department. This approach also proved C unsuccessful and Mr Shalabi was once again told to leave the country - this time by the end of September 1998. The application was then launched as a matter of urgency on 30 September 1998. The relief sought, after several amendments to the notice of motion, was an order declaring that Mr Shalabi was entitled to a temporary residence permit pending the final determination of his application for an D immigration permit and ordering the department to issue such a temporary residence permit. In the alternative, the applicants sought an order declaring s 25(9)(b) of the Act inconsistent with the Constitution to the extent that it authorises the grant of immigration permits to the spouses of South African residents when the applicant spouse is present in South Africa only if the applicant is in E possession of a valid temporary residence permit.

The Thomas application

[7] Mr and Mrs Thomas were married according to South African civil F law in Cape Town on 27 August 1994. Mrs Thomas, the first applicant, is a South African citizen by birth who is employed as a clerk and earns approximately R2 000 per month. Mr Thomas, the second applicant, is a citizen of St Helena Island, and therefore a British national. Although he is presently unemployed, he previously worked as a deep sea fisherman which resulted in his visiting Cape Town G regularly. On these occasions he was generally issued with temporary residence permits in terms of s 26(1) of the Act. Mr Thomas lost his job in June 1998 when the company for which he worked 'was sold'. He thereafter sought to extend his temporary residence permit but that extension was refused on the basis that he could not change the basis of his temporary residence permit 'from a transit permit to a holiday H permit' and he was ordered to leave the country and make an application 'from outside'. In August 1998 he also sought to make an application for an immigration permit but, as he did not have his birth certificate, the application was rejected

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as incomplete. Mr and Mrs Thomas also aver that they were not able to afford to pay the fee for A the immigration permit. After Mr Thomas' application for an extension of his temporary residence permit was refused on 14 September 1998, he was ordered to leave South Africa by 28 September 1998. Mr and Mrs Thomas then sought legal advice and the application was launched on an urgent basis at the end of September 1998. The relief B sought, as subsequently amended, included the following: a declaration that the fee prescribed by regulation as a requirement for an immigration permit was inconsistent with ss 9, 10, 21(3) and 28 of the Constitution and therefore invalid; that Mr Thomas was entitled to remain in South Africa pending the finalisation of his application for an immigration permit; and directing the Director-General of Home C Affairs (the DG) to issue a temporary residence permit to Mr Thomas pending the finalisation of that application.

[8] It is worth noting the following. The reason given for the refusal of the extension of Mr Thomas' temporary residence permit - that it was not possible to extend the permit when the D underlying purpose for which the permit was sought had changed - conflicts with the fact that Mr Shalabi had on several occasions had the underlying purpose of his temporary residence permit changed when he sought and obtained extensions of the permits even though he did not leave the country. [9] E

The order made by the High Court

[9] As stated above, the High Court made an order in favour of the applicants on both issues before it. The full terms of that order are as follows:

'1.

The Dawood application F

1.1

Item 13 of the annexure to reg 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...