Legal challenge in the Cape High Court



The successful legal challenge in the Cape High Court on February 17 cancelling the Government's March 12 intended introduction of stringent regulations in terms of the Immigration Act have been welcomed, but its chief opponent who led the High Court challenge is in little doubt that government will renew its efforts to introduce the regulations possibly through interim regulations. The regulations, which relate to foreigners purchasing local property, have, according to Buchanan Boyes attorney Caroline Wansbury, created ripples of anxiety among the property market. Requirements for obtaining permanent residence for retirees and financially independent persons will increase substantially from current levels - a minimum pension of R25,000 per month or assets of R15 million and R25,000 per month are just two examples. The regulations were rejected by the High Court on the basis that the provisions of the Immigration Act in terms of which the regulations were made had not yet come into force, making them a nullity. Immigration law expert Gary Eisenberg of Eisenberg & Associates who brought the successful challenge brands the regulations "a creature of someone's imagination" in that they allowed for no public ventilation on the issue. He believed the regulations would in particular have a "draconian effect on financially independent people retiring in South Africa." However, while his objections to the regulations were successfully upheld in the High Court, Eisenberg believes the Minister of Home Affairs could possibly make a further attempt to introduce the regulations. Such an effort, he speculates, could be based on the Minister's understanding that he has a right to make "interim regulations" in terms of Section 52 of the Immigration Act without first seeking public input. However, in Eisenberg's view the act does not allow for interim regulations and should such a situation unfold they could still be subject to attack on the basis that the public comment procedures set out in the Immigration Act were never followed. Article: 24 February 2003 Rodney Hayter The Property Professional On-line Edition 61 email: hayter@icon.co.za