Update on Immigration Act



As a result of a legal technicality, the new Immigration Act and its highly controversial regulations are now in force - despite the fact that the Minister of Home Affairs was last week denied leave to appeal a High Court decision to set the legislation aside. The High Court decision was made after Cape Town law firm Eisenberg & Associates twice successfully challenged the Act and its regulations on the grounds that the Minister did not allow for any public participation in the formulation of the regulations.The Court found the regulations to be invalid and unconstitutional, and ordered them set aside. It later also ordered that the implementation of the new Act be halted until its accompanying regulations were redrafted in the proper manner. And last week a full bench of the High Court refused the Minister's application to appeal its decision in the Appeals Court. (See 'All eyes on Immigration Act case', Property News 3 April.) In the normal course of events, that would have meant that the Department of Home Affairs had to take the legislation back to the drawing board and canvass public opinion before redrafting the regulations. But at the eleventh hour, the Minister gave notice that he would take the matter to the Constitutional Court. And the effect of that is that the new legislation comes into force in its entirety until the Constitutional Court reaches a decision.This manoeuvre has angered many in business and real estate, most of whom say it will only delay the inevitable while causing would-be immigrants to become confused and disillusioned. Says Ian Slot, chairman of Seeff Western Cape Licensees: 'The current state of affairs in which the Act and its regulations are in effect as a result of a technicality is unacceptable and untenable. 'We agree with High Court judges John Hlope and Deon van Zyl that it is highly unlikely that the Constitutional Court will rule differently to the High Court in its setting aside of the Act's regulations. 'And this begs the question: Does the Minister really believe that there are legitimate grounds for appealing the setting aside of the Act? Or was his notice simply a mechanism to willy-nilly enforce his will and bring into effect an invalid and unconstitutional piece of legislation?'Whatever the answer, he says, foreigners looking to buy property in South Africa or acquire permanent residence would now be well advised to wait until after the Constitutional Court ruling. 'Article: Property24 News - for the latest real estate news, visit www.property24.co.za