Booysen and Others v Minister of Home Affairs and Another

The applicants were spouses in four marriages concluded in terms of South African law, each comprising a South African citizen or permanent resident and a foreign national spouse without an immigration permit. They challenged two provisions of the Aliens Control Act 96 of 1991 in the Cape of Good Hope High Court. The first, section 26(2)(a), required foreign spouses seeking work permits to apply from outside South Africa and prohibited them from entering the country until the permit was issued. The second, section 26(3)(b), linked the issuance of work permits to a labour market test, meaning permits could be refused if the foreign spouse pursued an occupation in which a sufficient number of persons were already available in South Africa. The Minister and Director-General initially opposed the application but withdrew their opposition after the decision in Dawood v Minister of Home Affairs, conceding that the provisions unjustifiably limited the applicants' right to dignity. The High Court declared both provisions constitutionally invalid, suspended the declarations for 12 months, and made interim orders regulating the issuance of work permits during the suspension period. The matter was referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

• Whether section 26(2)(a) of the Aliens Control Act 96 of 1991 unjustifiably limits the right to human dignity (section 10 of the Constitution) by requiring foreign spouses of South Africans to apply for work permits from outside the Republic and remain abroad until the permit is issued.
• Whether section 26(3)(b) of the Aliens Control Act unjustifiably limits the right to human dignity by subjecting foreign spouses of South Africans to a labour market test before a work permit may be issued.
• Whether the declarations of constitutional invalidity made by the High Court should be confirmed, and if so, what interim relief is appropriate during any period of suspension.
• Whether the applicants should be awarded costs, including the costs of two counsel, for the confirmation proceedings.

The Constitutional Court confirmed the High Court order in amended form: (a) declared section 26(2)(a) and section 26(3)(b) of the Aliens Control Act 96 of 1991 inconsistent with the Constitution and invalid; (b) suspended both declarations of invalidity for 12 months; (c) issued detailed interim orders directing the Director-General to accept in-country work permit applications from foreign non-resident spouses of South African permanent residents, prohibiting refusal based on the labour market test, and requiring finalisation within 30 working days; (d) clarified that pre-8 February 2001 refusals remained lawful; and (e) ordered the first respondent to pay the applicants' costs including the costs of two counsel.

Section 26(2)(a) of the Aliens Control Act 96 of 1991 is inconsistent with the Constitution because it unjustifiably limits the right to human dignity (section 10) by requiring foreign spouses of South African citizens or permanent residents to apply for work permits from outside the Republic and prohibiting their entry until a permit is issued, thereby seriously disrupting family life and marital obligations. Section 26(3)(b) of the Aliens Control Act is likewise inconsistent with the Constitution because it unjustifiably limits the right to human dignity by making the issuance of work permits to foreign spouses conditional on a labour market test, thereby impeding their ability to support their families. A court granting a suspended declaration of invalidity may impose interim directives to regulate the executive’s conduct during the period of suspension so as to protect constitutional rights pending legislative correction.

The Court observed that if the Minister had indicated immediately after the High Court order was granted that he would not oppose confirmation, the applicants might well not have been entitled to costs of two counsel in the Constitutional Court, but because the Minister only withdrew opposition at a late stage, the applicants could not be faulted for having briefed two counsel. The Court also noted that receiving argument in confirmation proceedings is helpful to it in all but the most straightforward cases, even where opposition is ultimately withdrawn.

This case is significant because it affirmed that immigration restrictions which prevent foreign spouses of South African citizens and permanent residents from working, or which force them to remain outside the country while applying for work permits, unjustifiably infringe the right to human dignity protected by section 10 of the Constitution. Building on Dawood, the judgment reinforced the constitutional protection of family life and marital support in the immigration context. It established that foreign spouses may not be subjected to a labour market test or an out-of-country application requirement, and it set an important precedent for the Constitutional Court’s power to grant interim structural relief during a suspension of invalidity to protect rights pending parliamentary intervention.