Undesirable person - Constitutional Court paves way for legal challengeCraig Smith challenging the constitutionality of the new "Undesirability" immigration laws
• Australian Luc Osstyn missed the birth of his first-born in Cape Town.
• And wife Jade van Ryneveld has missed having her husband at her side for seven weeks.
• But finally their separation nightmare may be over.
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Africa Melane: It’s twenty three minutes past five this Tuesday afternoon. Last year headlines were dominated by undesirable persons, particularly a case where a father was separated from his baby because of South African visa issues. The family took the case to the Western Cape Higher Court and won, but Home Affairs took it further. They took it to the Constitutional Court, where they were contending that the order impermissibly encroaches on their executive authority by effectively rendering the provisions of section seven, sub-section two of the Promotion of Administrative Justice Act obsolete, and by creating a precedent that allows for internal remedies under the Immigration Act to be bypassed.
Craig Smith is an immigration lawyer. Craig, the Constitutional Court dismissing the case with costs, what does this mean?
Craig Smith: Well, Africa, thank you very much for having me on your show. Well, what it does mean is it’s taken a matter that we commenced in June of last year and only now in March are we able to actually get into the nub of the matter, which is to contest the constitutionality of the main provisions of the regulation. Unfortunately we’ve gone round after round, winning each round against the Department of Home Affairs, effectively in most instances with cost orders, so that we can now finally pursuant to today’s Constitutional Court judgment, finally we can now get to the real business and deal with the very regulations that have created such an undesirable, pardon the pun, such a problematic situation in South Africa where families are being separated, and hopefully finally we can pronounce on the constitutionality of that provision.
Africa Melane: And what will this business end entail?
Craig Smith: Well the business end is the second part of our application. I mean I think if we didn’t have to go through and exhaust, and waste taxpayers’ money we would have been finalized already. But what it entails is effectively getting to a specific provision in the new regulations, which has obviously been the subject of much controversy. But now we can finally get to those specific regulations and deal with the constitutionality as to whether it is correct in the manner in which it has been formulated and articulated to simply, as a matter of course, separate families without any exercise of discretion and ban what is very sacred to the institution of marriage and partners that are married and have every right of dignity to be together.
Africa Melane: Craig, for those who may not be availed with the details of this case, how does the current, or how did the current legislation pertain to the Johnson family here?
Craig Smith: Well let’s put it this way: prior to the Johnson matter, which was a seminal case in this undesirability, if a person left the country with an existing or a pending visa, you would leave unsanctioned. Home Affairs then took it upon itself to say you know what, that’s not good enough, despite the fact that the department could delay in the adjudication, you were never a less entitled to leave. Which was prudent.
Then they went further and they said now will we no longer going to accept that, now we’re going to fine you. Even though they knew you’re not at fault. And unfortunately on the 26th of May, 2014, they went even further. And what they did is they no longer imposed fines, but simply declared you undesirable without any discretion whatsoever. So an immigration officer is obliged in accordance with directive nine to simply declare you undesirable, regardless of the explanation, whether you had medical grounds or anything else. You simply were declared undesirable, which of course is causing a lot of consternation, has already, and continues to do so.
Africa Melane: So, families who are finding themselves in a similar situation, what should they do next?
Craig Smith: Well, what they should do next is watch this court case very closely, because we are now going to deal with the principal provision that gives the immigration officers at the port of entry the right to declare people undesirable, and we will ask the court now to determine and have a very good look at the constitutionality of this provision and the construct of the provision. Our view is of course that we maintain that it is unconstitutional. The Department has effectively delayed this process by some ten months, and if it is rendered unconstitutional then people will not be faced with such harsh penalties and Home Affairs will have to look for another way of dealing with this so long as it’s not unconstitutional.
Africa Melane: We did intend to speak to Brent Johnson but unfortunately we’re not able to connect with him. I imagine he is pleased with the outcome.
Craig Smith: Yes. Now Brent is engaged, but the media has asked him exactly what he has thought about the position, and it’s important to get someone from civic society talking about his views because these are the very people that are being affected.
Brent Dereck Johnson: When the judge made the judgment, I could of kissed him, never mind bow to him as I had to leave, so it was a fantastic vindication of what we said all the time. He just saw the sense in this, that it is an absolute absurdity what happened and it is just such a shame that it had to go this far.
Craig Smith: You know, I’ve always maintained that there are other ways of dealing with it, dealing with our porous borders, people going over the fences. Rather not focus on those that come in and out of the airport, focus on I think the dire issues that need focus first. And I don’t think that this current regime in terms of undesirability is the way to go.
Africa Melane: Craig Smith, thank you very much for your time this afternoon. Immigration lawyer, the Constitutional Court dismissing the case that was brought to it by the Minister of Home Affairs and the Director General of Home Affairs, application dismissed with costs, and Craig Smith saying watch this space because I will then be testing the constitutionality that made it possible for the Department of Home Affairs to deem the Johnsons, amongst other people, undesirable persons. It’s twenty nine minutes past five.
Minister of Home Affairs and Others v Johnson and Others; Minister of Home Affairs and Another v Delorie and Others (CCT 219/14)  ZACC 6 (24 March 2015)