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 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000)

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 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000)

Section 25(9)(b) of the Aliens Control Act, read with sections 26(3) and (6), is unconstitutional because it fails to provide legislative guidance for the refusal or extension of temporary residence permits to foreign spouses of South African residents. This omission results in arbitrary and unjustifiable limitations of the right to dignity, specifically the right of spouses to cohabit and maintain family life. The discretion conferred on immigration officials is too broad and unconstrained, leading to unpredictable and potentially unconstitutional outcomes. The privilege intended by section 25(9)(b) is undermined by the lack of criteria for refusal, and the resulting arbitrariness is...

Citation
[2000] ZACC 8
Parties
Applicant: Rahim Dawood; Applicant: Khahattha Dawood (born Chaisorn); Applicant: Nazila Shalabi (born Adams); Applicant: Ahmed Talaat Mahmoud Hafed Shalabi; Applicant: Maureen Sheila Thomas (born Fredericks); Applicant: Colin Patrick Thomas; Respondent: Minister of Home Affairs; Respondent: Director-General: Home Affairs; Respondent: Minister of Finance; Respondent: Regional Representative of the Department of Home Affairs (Cape Town)
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
7 June 2000
Case Number
CCT35/99
Procedural Posture
Constitutional Review / Confirmation of High Court Order of Constitutional Invalidity; Appeal Abandoned by Respondents
Outcome
Section 25(9)(b) of the Aliens Control Act, read with sections 26(3) and (6), is declared inconsistent with the Constitution and invalid. The declaration of invalidity is suspended for 24 months to allow Parliament to correct the defect. Interim relief is granted to applicants and similarly situated persons. Costs...
Judges
O'Regan, Chaskalson, Langa, Goldstone, Kriegler, Madala, Mokgoro, Ngcobo, Sachs, Yacoob, Cameron
Legal Topics
Right to Dignity, Immigration Permits, Aliens Control Act, Discretionary Powers, Family Unity, Limitations Clause
Constitutional Law Administrative Law Right to Dignity Immigration Permits Aliens Control Act Discretionary Powers Family Unity Limitations Clause

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Parties

Rahim Dawood

Applicant

Khahattha Dawood (born Chaisorn)

Applicant

Nazila Shalabi (born Adams)

Applicant

Ahmed Talaat Mahmoud Hafed Shalabi

Applicant

Maureen Sheila Thomas (born Fredericks)

Applicant

Colin Patrick Thomas

Applicant

Minister of Home Affairs

Respondent

Director-General: Home Affairs

Respondent

Minister of Finance

Respondent

Regional Representative of the Department of Home Affairs (Cape Town)

Respondent

Procedural Posture

Constitutional Review / Confirmation of High Court Order of Constitutional Invalidity; Appeal Abandoned by Respondents

Legal Issues

  1. 1 Whether section 25(9)(b) of the Aliens Control Act, read with sections 26(3) and (6), unjustifiably limits the constitutional right to dignity of spouses of South African residents.
  2. 2 Whether the absence of legislative guidance for the refusal of temporary residence permits results in unconstitutional arbitrariness.
  3. 3 Whether the fee regulations for immigration permits are inconsistent with the Constitution.

Ratio Decidendi

Section 25(9)(b) of the Aliens Control Act, read with sections 26(3) and (6), is unconstitutional because it fails to provide legislative guidance for the refusal or extension of temporary residence permits to foreign spouses of South African residents. This omission results in arbitrary and unjustifiable limitations of the right to dignity, specifically the right of spouses to cohabit and maintain family life. The discretion conferred on immigration officials is too broad and unconstrained, leading to unpredictable and potentially unconstitutional outcomes. The privilege intended by section 25(9)(b) is undermined by the lack of criteria for refusal, and the resulting arbitrariness is...

Court Disposition

Section 25(9)(b) of the Aliens Control Act, read with sections 26(3) and (6), is declared inconsistent with the Constitution and invalid. The declaration of invalidity is suspended for 24 months to allow Parliament to correct the defect. Interim relief is granted to applicants and similarly situated persons. Costs...

Orders

  • Section 25(9)(b) read with sections 26(3) and (6) of the Aliens Control Act 96 of 1991 is declared inconsistent with the Constitution and invalid.
  • The declaration of invalidity is suspended for 24 months from the date of the order to enable Parliament to correct the inconsistency.