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 (1) SA 997 (C)

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 (1) SA 997 (C)

2000 (1) SA p997

Citation	2000 (1) SA 997 (C)
Case No	12745/98; 13503/98; 13435/98
Court	Cape Provincial Division
Judge	van Heerden AJ
Heard	March 23, 1999; March 24, 1999; April 13, 1999; April 16, 1999
Judgment	September 21, 1999
Counsel	Anton Katz (with him PBJ Farlam) for the applicants; JC Heunis (with him RF Van Rooyen) for the respondents

Flynote : Sleutelwoorde

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 — Necessary implication of s 25(9)(a) of Act that, as general rule, regional committee of Immigrants Selection Board can only authorise issue of I immigration permit if applicant concerned outside Republic at time of such authorisation — Applicant in one of categories exempted from rule by s 25(9)(b) only exempt from general rule if she or he in possession of valid temporary residence permit at time of authorisation of issue of immigration permit by relevant regional committee — Regulation 14(2) of Aliens Control Regulations allowing J

2000 (1) SA p998

alien falling within one of exceptional class of aliens referred to in A s 25(9)(a) and (b) to make application for immigration permit while such alien inside Republic.

Constitutional law — Human rights — Right to dignity in terms of s 10 of Constitution of the Republic of South Africa Act 108 of 1996 — Core element of right to family life (ie right of husband and wife B to live together in community of life) falling within scope of s 10.

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 — Payment of prescribed fee — Fee prescribed in respect of applications for immigration permits C by alien non-resident spouses of South African permanent residents infringing or threatening right to human dignity of such South African permanent residents and/or such alien spouses — If such alien spouse unwilling or financially unable to pay prescribed fee, application by alien spouse for immigration permit not accepted or considered by relevant authorities — Alien spouse thus prohibited from sojourning in D South Africa with view to permanent residence in country and ultimately required to leave South Africa or be deported — Right to live together with South African permanent resident spouse in community of life violated, unless spouse also able to leave country — Prescribed fee accordingly in conflict with s 10 of Constitution of the Republic of E South Africa Act 108 of 1996 as far as it applies to alien spouses of South African permanent residents.

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 — Section 25(9)(b) requiring applicant to be outside Republic at time of issue of immigration permit, unless falling within category of F persons specifically exempted — Subsection resulting in violation of core element of alien spouse's right to family life and thus violation of right to human dignity — Section 25(9)(b) falling foul of right to human dignity protected in s 10 of Constitution of the Republic of South Africa Act 108 of 1996 of both South African permanent residents married to alien non-resident spouses and alien spouses. G

Headnote : Kopnota

The applicants in these three applications applied in a Provincial Division for an order declaring the following provisions of the Aliens Control Act 96 of 1991 (the Act) to be in conflict with the H Constitution of the Republic of South Africa Act 108 of 1996: (1) s 25(1), which stipulated that a prescribed fee was payable in respect of an application for an immigration permit by the alien spouse of a person permanently and lawfully resident in South Africa, and (2) s 25(1)(b), which empowered regional committees of the Immigrants Selection Board (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 had been permitted under s 26(2) of I the Act to temporarily sojourn in the Republic. (The fee referred to in (1) is prescribed in item 13 of the annexure to reg 2 of the Schedule to the fifth amendment to the Aliens Control Regulations (Fees) and item 16 of the annexure to reg 2 of the Schedule to the sixth amendment to those regulations.) In addition the applicants sought an order declaring that reg 14(2) of the Aliens Control Regulations (the regulations) did not preclude an application for an immigration J

2000 (1) SA p999

permit from being made by an alien spouse while the A applicant concerned was physically present in South Africa but had not been permitted under s 26(1) to temporarily sojourn in the Republic. Prior to an amendment to the regulations alien spouses of persons permanently and lawfully resident in South Africa had been exempted from payment of the prescribed fee. The applicants relied on, inter alia, s 10 of the Constitution, which guaranteed the right to human dignity. B

Held, that the necessary implication of s 25(9)(a) of the Act was that, as a general rule, a regional committee of the Board could only authorise the issue of an immigration permit if the applicant concerned was outside the Republic at the time of such authorisation. Section 25(9)(b) exempted certain categories of persons (ie the destitute, aged or infirm C members of the family of a person permanently and lawfully resident within the Republic) from the general rule established by s 25(9)(a). An applicant in one of those categories was, however, only exempt from the general rule if she or he was in possession of a valid temporary residence permit at the time of authorisation of the issue of the immigration permit by the relevant regional committee. (At 1020G - G/H and 1020J - 1021C.) D

Held, further, that, properly construed, reg 14(2) allowed an alien falling within one of the exceptional class of aliens referred to in s 25(9)(a) and (b) to make an application for an immigration permit while such alien was inside the Republic. (At 1021H/I - I/J.)

Held, further, that interpreting s 10 of the Constitution in a purposive manner and considering international law in the course E of such interpretation, the core element of the right to family life (ie the right of husband and wife to live together in community of life) fell within the scope of s 10. (At 1032C/D, 1035F/G - G/H, 1035J - 1036A/B and 1038B - C.)

Held, further, that the fee prescribed in respect of applications for immigration permits, to the extent that it applied to alien non-resident spouses of South African permanent residents, infringed or threatened the right to human dignity of such South African permanent residents and/or such alien spouses. It was clear F that, if such an alien spouse was unwilling (or, much more likely, financially unable) to pay the prescribed fee (even with the financial assistance of the South African permanent resident spouse in terms of the common-law reciprocal duty of support between spouses), any application by the alien spouse for an immigration permit would not be accepted by the Director-General of Home Affairs and would therefore G not be submitted to the relevant regional committee of the Board. That being so, the alien spouse would not even have the opportunity of being considered by the relevant regional committee for the issue of an immigration permit and would be prohibited from sojourning in South Africa with a view to permanent residence in the country. The alien spouse would ultimately be required leave South Africa or be deported. Her or his right to live together with her or his South African H permanent resident spouse in community of life would certainly have been violated, unless the spouse was also able to leave the country. (At 1038F/G - 1039D/E, paraphrased.)

Held, further, that s 25(9)(b) of the Act also fell foul of the right to human dignity protected in s 10 of the Constitution, both of South African permanent residents who were I married to alien non-resident spouses, as also of such alien spouses. The practical effect of s 25(9)(b) was that, although an alien spouse married to a South African permanent resident was in fact living in South Africa with her or his spouse, the alien spouse could be compelled to leave South Africa and to remain outside the country while her or his application for an immigration permit was being submitted to and considered by the relevant regional committee. This would result in a violation of the J

2000 (1) SA p1000

core element of the alien spouse's A right to family life and thus a violation of her or his right to human dignity. Accordingly, s 25(9)(b) also constituted an infringement or a threatened infringement of the South African permanent resident spouse's right to human dignity. (At 1040B - E and G - I.)

Held, further, as regards reg 14(2) of the regulations, it followed from the wording of the regulation that, in B view of the finding that s 25(9)(b) was unconstitutional in that it prohibited an alien spouse of a South African permanent resident who did not hold a valid temporary residence permit from remaining in South Africa while her or his application for an immigration permit was being submitted to and considered by the relevant regional committee, reg 14(2) was also unconstitutional insofar as it prevented such an alien spouse from 'making' the application for an immigration permit while inside South...