Watchenuka and Another v Minister of Home Affairs and Others (1486/02) [2002] ZAWCHC 64; 2003 (1) SA 619 (C); 2003 (1) BCLR 62 (C) (15 November 2002)

Watchenuka and Another v Minister of Home Affairs and Others (1486/02) [2002] ZAWCHC 64; 2003 (1) SA 619 (C); 2003 (1) BCLR 62 (C) (15 November 2002)

The court held that the Minister's regulation prohibiting work and study for asylum seekers was made without regard to any determination by the Standing Committee, as required by the Refugees Act. This rendered the regulation ultra vires and inconsistent with the Constitution. The Standing Committee only made its determination months after the regulation was promulgated, and the Minister's failure to consult or rely on such determination invalidated the prohibition. The court found it unnecessary to decide on the lawfulness of the Standing Committee's composition or the constitutional rights arguments, as the regulation was already invalid on the first ground.

Citation
[2002] ZAWCHC 64
Parties
Applicant: Muriel Millie Watchenuka; Applicant: Cape Town Refugee Centre; Respondent: Minister of Home Affairs; Respondent: Director General, Department of Home Affairs; Respondent: Chairperson, Standing Committee of Refugee Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 November 2002
Case Number
1486/02
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted. The prohibition on work and study for asylum seekers is declared unconstitutional and invalid.
Judges
H.J. Erasmus
Legal Topics
Refugees Act, Ultra Vires Regulation, Constitutional Invalidity, Standing Committee Composition, Right to Employment, Right to Education
Constitutional Law Administrative Law Refugees Act Ultra Vires Regulation Constitutional Invalidity Standing Committee Composition Right to Employment Right to Education

Case Brief

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Parties

Muriel Millie Watchenuka

Applicant

Cape Town Refugee Centre

Applicant

Minister of Home Affairs

Respondent

Director General, Department of Home Affairs

Respondent

Chairperson, Standing Committee of Refugee Affairs

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the prohibition on work and study for asylum seekers imposed by regulation is unconstitutional.
  2. 2 Whether the Minister acted ultra vires by imposing conditions without a determination from the Standing Committee.
  3. 3 Whether the composition of the Standing Committee affected the validity of its determinations.

Ratio Decidendi

The court held that the Minister's regulation prohibiting work and study for asylum seekers was made without regard to any determination by the Standing Committee, as required by the Refugees Act. This rendered the regulation ultra vires and inconsistent with the Constitution. The Standing Committee only made its determination months after the regulation was promulgated, and the Minister's failure to consult or rely on such determination invalidated the prohibition. The court found it unnecessary to decide on the lawfulness of the Standing Committee's composition or the constitutional rights arguments, as the regulation was already invalid on the first ground.

Court Disposition

Application granted. The prohibition on work and study for asylum seekers is declared unconstitutional and invalid.

Orders

  • The prohibition on work and study contained in Item 9 under the heading 'B. Conditions' of Annexure 3 read with Regulation 7(1) of the regulations made by the Minister in terms of Section 38 of the Refugees Act 130 of 1998 is declared inconsistent with the Constitution and invalid.
  • Respondents are directed to permit the first applicant to be employed pending finalisation of her asylum application.