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
• Citation: 2000 (3) SA 936 (CC)

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
2000 (3) SA 936 (CC)

2000 (3) SA p936

Citation	2000 (3) SA 936 (CC)
Case No	CCT 35/99
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
Heard	March 23, 2000
Judgment	June 7, 2000
Counsel	W H Trengove SC (with him Anton Katz and P B J Farlam) for the applicants.; No appearance for the respondents.

Flynote : Sleutelwoorde

Constitutional practice — Application to Constitutional Court for confirmation of order of constitutional invalidity — Government department withdrawing J

2000 (3) SA p937

opposition to order of confirmation — Where confirmation of order of constitutional invalidity under consideration, A abandonment of appeal does not put an end to proceedings — Court still has to decide whether to confirm, vary or set aside order — Moreover, Court has to determine what ancillary orders to make, if any — Relevant government department best placed to assist Court to craft such ancillary orders — Common issue relates to time department needs to replace unconstitutional provision — In light of constitutional scheme B which provides for separation of powers, Court can best carry out its task if careful and detailed evidence and argument placed before it by those in government qualified to do so, particularly when legislation under challenge — If this not done, Court's ability to perform its constitutional mandate hampered and constitutional scheme itself put at C risk.

Immigration — Aliens — Permanent residence permit in terms of s 25 of Aliens Control Act 96 of 1991 — Application for — Application for by alien spouse of South African permanent resident — Temporary residence permit referred to in both s 25(9)(a) and (b) has to be valid at time immigration permit granted — Section 25(9)(b) referring to person whose temporary residence D permit still valid and not to person whose permit has expired — Section 25(9), read in context of s 23, establishing general rule that regional committee of Immigrants Selection Board can grant such permits only when applicant not in South Africa, subject to certain exceptions — Given that such applications not automatically granted but have to be considered on their merits, provisions necessarily E authorising immigration officials to refuse to issue or extend such temporary permits — Effect of such refusal is that South African married to foreigner forced to choose between going abroad with partner while application considered or remaining in South Africa alone — Right (and duty) to cohabit restricted in this way — Accordingly, right to dignity of spouses limited by statutory provisions empowering immigration F officers to refuse to grant or extend temporary permit — No guidance to be found as to circumstances in which immigration officials can refuse to issue or extend temporary residence permit — Effect of s 25(9)(b), read with ss 26(3) and (6), resulting in unjustifiable infringement of constitutional right of dignity of applicant spouses who were married to people lawfully and permanently G resident in South Africa — No government purpose discernible that is achieved by complete absence of guidance as to countervailing factors relevant to refusal of a temporary permit — Therefore s 25(9)(b), as read with ss 26(3) and (6) of Act unconstitutional. H

Constitutional law — Human rights — Right to dignity in terms of s 10 of Constitution of the Republic of South Africa Act 108 of 1996 — Right of husband and wife to live together in community of life — Value of dignity in constitutional framework cannot be doubted — Human dignity informing constitutional adjudication and interpretation at a range of levels and informing interpretation of many, possibly all, other rights — Human dignity also a constitutional value of central I significance in limitations analysis — Section 10 of Constitution making it plain that dignity not only a value fundamental to Constitution, but also a justiciable and enforceable right that has to be respected and protected — There is no more specific right that protects individuals wishing to enter into and sustain permanent J

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intimate relationships than right to dignity in s 10 — There is no specific provision protecting family life as there is in other A constitutions and in many international human rights instruments — Primary right implicated is right to dignity.

Constitutional law — Human Rights — Fundamental rights in terms of chap 2 of Constitution of the Republic of South Africa Act 108 of 1996 — Protection of — Exercise of discretionary power — Difference between requiring court or tribunal in exercising a discretion to B interpret legislation in manner consistent with Constitution and conferring broad discretion upon official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in absence of direct guidance, to exercise discretion in manner consistent with the provisions of Bill of Rights — Fact that exercise of C discretionary power may be challenged subsequently and successfully on administrative grounds not relieving Legislature of constitutional obligation to promote, protect and fulfil rights entrenched in Bill of Rights — Responsibility to protect constitutional rights in practice imposed both on Legislature and on Executive and its officials — Legislature to take care when legislation drafted to limit D risk of unconstitutional exercise of discretionary powers it confers — Guidance often required to ensure that Constitution takes root in daily practice of governance — Where necessary, such guidance to be given, either in legislation itself or, where appropriate, by legislative requirement that delegated legislation be properly enacted by competent authority. E

Headnote : Kopnota

The applicants in each case were spouses, one of whom was South African and the other an alien who sought an immigration permit to settle in South Africa. The applicants had applied to a Provincial Division for an order declaring, inter alia, s 25(9)(b) of the Aliens Control Act 96 of 1991 (the Act) F to be in conflict with the Constitution of the Republic of South Africa Act 108 of 1996 on the ground, inter alia, that it infringed the applicants' right to dignity, in particular because it provided that an immigration permit could be granted to the spouse of a South African citizen who was in South Africa at the time only if that spouse was in possession of a valid temporary residence permit. Accordingly, if the alien spouse did not have such a permit, such spouse would G either have to separate until the application for the permit was processed or the South African spouse would have to leave the country. The order was granted by the Court a quo. The day prior to the hearing of an application to the Constitutional Court to confirm the order the Minister and Director-General of Home Affairs, who had appealed against the order, withdrew their opposition and were not represented at the hearing of the application. H

Held, that the absence of legal representation on behalf of the respondents at the hearing had serious consequences. Where the confirmation of an order of constitutional invalidity was under consideration by the Court, the abandonment of an appeal did not put an end to the proceedings. The Court still had to decide whether to confirm, vary or set aside the order. Moreover, the Court had to I determine what ancillary orders should be made, if any. The relevant government department was best placed to assist the Court to craft such ancillary orders by informing it of the potential disruption that an order of invalidity might cause. A common issue related to the time the department would need to replace the unconstitutional provision. (Paragraph [15] at 953D - F.) J

2000 (3) SA p939

Held, further, that by withdrawing from the proceedings at such a late stage, the respondents had not only deprived the Court A of the benefit of being able to canvass the issues relating to confirmation fully at the proceedings, but also had made it impossible for the President of the Court to ask the Minister of Justice to appoint counsel to assist the Court. In the light of the constitutional scheme which provided for the separation of powers, the Court could best carry out its task if careful and detailed evidence and argument was placed before it by those in government qualified to do so, B particularly when legislation was under challenge. If this was not done, the Court's ability to perform its constitutional mandate was hampered and the constitutional scheme itself could be put at risk. (Paragraphs [16] and [17] at 953G - H and 953I - 954A.)

Held, further, that the temporary residence permit referred to in both s 25(9)(a) and (b) had to be valid at C the time the immigration permit was granted. Therefore, it was plain that when s 25(9)(b) referred to a person 'who has been permitted under s 26(1) of the Act to temporarily sojourn in the Republic', it referred to a person whose temporary residence permit was still valid and not to a person whose permit had expired. (Paragraphs [21], [22] and [24] at 955B/C - C, E - E/F and 956D - 957A.) D

Held, further, that there was a three-fold conclusion. First, s 25(9), read in the context of s 23 of the Act, established a general rule that a regional committee of the Immigrants Selection Board (the agency empowered to grant immigration permits) could grant E such permits only when the applicant was not in South Africa. Secondly, s 25(9)(a) created an exception to this rule in terms of which an applicant for an immigration...