Minister of Home Affairs v Dominique Liebenberg

Dominique Liebenberg, a South African citizen, married a Senegalese national in Johannesburg on 27 June 2000. Her husband first entered South Africa in December 1997 on a Senegalese passport, sought political asylum, and was granted a temporary permit allowing him to work on certain conditions in April 1998. After the marriage, the husband lost his Senegalese passport. The respondent applied for a temporary residence permit for her husband at the Johannesburg regional office of the Department of Home Affairs to enable him to remain in South Africa pending an application for an immigration permit under section 25(5) of the Aliens Control Act 96 of 1991. The application was refused on the ground that, having lost his passport, the husband had no legal status to remain in South Africa. The respondent was informed she would have to replace his passport and pay various fees totaling R1,970.00 for a spouse visa, work-seeking permit, and employment authorization. Dissatisfied, the respondent, acting without legal representation, launched urgent application proceedings in the Witwatersrand High Court challenging the fee requirement. The Department of Home Affairs did not oppose the application but undertook to issue a temporary residence permit on condition that the husband apply for a new passport within six months. The High Court made an order based on the parties' agreed draft order. The Minister then applied to the Constitutional Court for confirmation of paragraphs 2 and 3 of that order under section 172(2)(d) of the Constitution.

• Whether the High Court order declaring certain regulations invalid constitutes an 'order of constitutional invalidity' requiring confirmation by the Constitutional Court under section 172(2) of the Constitution
• Whether regulations made under the Aliens Control Act should be regarded as equivalent to 'an Act of Parliament' for purposes of section 172(2)
• Whether paragraph 2 of the High Court order, which declared invalid certain fees in regulations, falls within the scope of section 172(2)
• Whether paragraph 3 of the High Court order constitutes a declaration of constitutional invalidity requiring confirmation
• What constitutes a proper form of declaration of invalidity under section 172(2)(a) of the Constitution

The application for confirmation was dismissed. The Constitutional Court refused to confirm any part of the High Court order under section 172(2)(d) of the Constitution.

The binding legal principles established are: (1) Section 172(2) of the Constitution requires Constitutional Court confirmation only for orders declaring invalid 'an Act of Parliament, a provincial Act or any conduct of the President'; (2) Regulations and other subordinate legislation made under Acts of Parliament do not constitute 'Acts of Parliament' for purposes of section 172(2), regardless of definitional provisions in enabling legislation; (3) An Act of Parliament is an Act passed by the national legislature, and a provincial Act is an Act passed by a provincial legislature - these constitutional terms cannot be redefined by ordinary legislation; (4) Ministers exercise only subordinate, delegated authority when making regulations, which are therefore not Acts of Parliament; (5) Any order declaring constitutional invalidity under section 172(2)(a) must clearly and specifically indicate precisely what Act of Parliament, or provisions thereof, what provincial Act, or provisions thereof, or what conduct of the President, is being declared constitutionally invalid; (6) Vague or imprecise declarations of invalidity that leave one to speculate as to what provisions are the subject of the order do not constitute the form of declaration contemplated by section 172(2) and cannot be confirmed.

The Court made several non-binding observations: (1) It commented unfavorably on the poor drafting of the High Court order, noting it was 'regrettable' that an order issued by a court, which 'binds all persons to whom and organs of state to which it applies,' contained obscurities and defects that the parties apparently did not bring to the court's attention, likely due to 'great pressure, as prevail in the motion division of the High Court in question'; (2) The Court emphasized that 'it is particularly important that, where orders invalidate legislation, such orders be specific'; (3) Regarding paragraph 3 of the order which directed 'the Respondent and Parliament to correct the Constitutional inconsistency,' the Court noted this 'at most...seems to me to be a mandamus' and stated 'We are not called upon to decide whether such an order is permissible. There is no appeal against it.' This suggests potential concerns about the propriety of such orders without deciding the issue; (4) The Court noted that the respondent 'had no legal representation in those proceedings and her papers are not well drafted,' providing context for the defective nature of the proceedings.

This case is significant in South African constitutional jurisprudence for establishing clear parameters around section 172(2) of the Constitution regarding what types of orders require confirmation by the Constitutional Court. It definitively establishes that regulations and other subordinate legislation do not constitute 'Acts of Parliament' for purposes of constitutional confirmation requirements, regardless of how enabling legislation defines terms. The case reinforces the constitutional distinction between primary legislation (Acts of Parliament and provincial Acts) and subordinate legislation (regulations, proclamations, etc.), and clarifies that only declarations of invalidity concerning the former require Constitutional Court confirmation. It also emphasizes the importance of precision and specificity in court orders declaring legislation constitutionally invalid, requiring that such orders clearly identify exactly what statutory provision or conduct is being invalidated. The judgment contributes to the jurisprudence on the proper form and content of declarations of constitutional invalidity. Following this decision, courts and practitioners understand that challenges to regulations on constitutional grounds can be finally determined by the High Courts without requiring Constitutional Court confirmation, streamlining the adjudication of such matters.