The court a quo held, first, that the regulations are unconstitutional, at least in so far as they apply to spouses of South African citizens and other persons mentioned in s 25(5) of the Act. Second, it held that the requirement that spouses married to South African citizens have to pay fees for certain permits is inconsistent with various constitutionally enshrined rights and unconstitutional and ordering the Minister and Parliament to correct this inconsistency. The Minister applied to the Constitutional Court for an order confirming the High Court order, arguing that this was necessary in terms of s 172 of the Constitution.
The Constitutional Court held that High Court decisions declaring regulations invalid did not fall within the ambit of s 172 and could not accordingly be confirmed. Sections 167(5) and 172(2) of the Constitution required the Court to confirm orders made by the High Court declaring “an Act of Parliament, a provincial Act or any conduct of the President” unconstitutional. Regulations were made by Ministers in terms of subordinate, delegated authority from Parliament and were not “Acts of Parliament”; and secondly, that the order was not a declaration of constitutional invalidity that could be confirmed under s 172, even if it were assumed that the order was one declaring unconstitutional the requirement that alien spouses are to pay fees for permits. The Court stressed that any declaration of invalidity made in terms of s 172 should indicate clearly and precisely which provisions of an Act of Parliament are being declared invalid.
Constitutional law; temporary residence permit; regulations; aliens; declaration of constitutional validity
The respondent's husband lost his Senegalese passport, and the respondent applied on his behalf for a temporary residence permit. The Department rejected the application and allegedly informed the respondent that in order for her husband to remain lawfully in South Africa he would have to replace his passport, which incurred various fees. These fees were prescribed by regulation in the Seventh Amendment of the Aliens Control Regulations (Fees) of 2000 published in terms of the Aliens Control Act 96 of 1991 (the Act). The respondent challenged the constitutionality of the regulations prescribing the fees.
The appeal was dismissed.
The Constitutional Court held that that the order was not a declaration of constitutional invalidity that could be confirmed under s 172 of the Constitution.