The Constitutional Court yesterday reserved judgment on the issue whether Home Affairs Minister Mangosuthu Buthelezi will be granted leave to appeal a decision by the Cape High Court on the constitutionality of new Immigration Act regulations.

This follows a decision by the Cape High Court that Buthelezi had acted unconstitutionally when he adopted the regulations pertaining to the new Immigration Act without public notice and comment.

The legal team for the minister argued that the regulations were only transitional and therefore did not require public notice and comment.

Advocate David Unterhalter, SC, submitted that Section 52 of the act only required him to adopt regulations and publish them in the Government Gazette.

Only after the Immigration Advisory Board had been convened would permanent regulations be drafted.

These regulations would be subject to Section 7 of the new act that provided for a procedure of notice and comment from the public.

However, several of the nine judges questioned this, pointing out that no provision was made for a deadline or expiry date.

Unterhalter said the new regulations were vital to the implementation of the new Immigration Act as it differed vastly from the old Aliens Control Act.

"The architecture of the new act is so different from the old act that the old regulations cannot be conjoined to it in any way," he said. Advocate Andrew Tuchten, SC, also for Home Affairs, said the new regulations did not adversely effect public rights. He said the founding affidavit, lodged by Cape Town immigration lawyer Gary Eisenberg against Buthelezi, assumed the minister was obliged to entertain public comment on the regulations.

The minister, however, had the right to follow a fair, but different, procedure, which he did.

Tuchten also said that the Promotion of Administrative Justice Act (PAJA) did not apply to the adopting of the regulations.

He said the Act was promulgated to protect the public's direct rights "on the ground", for example in a case where a dam is built in a certain area.

When delegated legislation is made, the PAJA did not apply.

He said drawing up and adopting regulations was not an administrative function. Imposing them was administrative.

He said that once the new immigration regime was up and running, the public would have the right to comment.

Counsel for Eisenberg, Anthony Katz, argued that the regulations were not meant to be transitional only, but were actually permanent.

He said if regulations were adopted, procedures set out in Section 7 (a)(b) and (c) of the Immigration Act had to be followed, even if it took a year.

According to Katz, Section 52 of the Act meant that the Minister could make regulations without consulting the Immigration Advisory Board if the Board had not yet been convened, constituted and put into operation.

It did not relieve him, however from other obligations, such as public comment and notice.

The Constitutional Judges put it to Katz that his client had no greater interest than any other member of the public in contesting the constitutionality of the regulations.

Katz contended that his client had the right to act in the interest of the public if it was believed that the general public's rights were being invaded.

Chief Justice Arthur Chaskalson posed the question whether the new Act could function without the disputed regulations, since the old Act had been repealed.

He also pointed out that the old Act had caused several problems and that the Constitutional Court had on several occasions pointed out that the old Act was unconstitutional in several aspects.

On the issue of the costs of the case, Katz argued that it would be fair to award costs against his client if it was found that the case was frivolous and vexatious.

He said however that two actions in the Cape High Court had been successful and that proved that the case was not frivolous.

He also said if costs were awarded against his client it would discourage similar legal actions, which were in the general public's interest. – Sapa.