Opinion: How the “irrational” regulations can be stopped Todays News - 13 Wed, Aug 2014 Whatever was the Immigration Advisory Board (IAB) thinking when they approved the Department of Home Affairs (DHA) new regulations? Unfortunately it does not matter if the minister failed to consult with the tourism sector, the law only requires him to consult with the IAB, which he did. One wonders who these people are and to what extent they are familiar with tourism issues. We believe the Minister of Home Affairs, Malusi Gigaba, will have to back down, the National Development Plan is too important. Hopefully, then, some of IAB will stand down and make way for people who do understand the sector that generates almost 10 % of our GDP and who don’t embarrass the minister. When the law was passed in 2011, it was so vague regarding the regulations that the DHA undertook to discuss them when they were formulated with the DHA Parliamentary Portfolio Committee and Nedlac. That it failed to do so, is also not sufficient grounds to get an interdict to stop their introduction. Tourism Update has approached legal experts on what can be done to get rid of the regulations. Chris Watters, a Gauteng-based attorney who used to sit on the IAB, said that the DHA might have a technical problem in that it is assuming powers that it has not been given. With regard to the regulations governing the movement of minors and unabridged birth certificates, this may be true particularly in the cases of it also affecting South Africans. But if the regulations do survive the test that they were within the powers of the DHA, they will surely face the rationality test. Professor Vicky Bronstein of the Wits Law School says that regulations can be struck down if they are not rational. Minister Gigaba would have to show that the regulations are connected with the facts and the information he had when he decided on them. We wait to hear about his knowledge of child trafficking. The number varies from 30 000 a year to about a dozen criminal cases of which none might have involved an international airport. We also wait with anticipation as he names all the countries that require minors to travel physically with unabridged birth certificates when they cross a border. We have still to find one other. For the interest of those who might pursue legal action to stop the regulations, we publish the comments of Professor Bronstein where she cites recent cases of regulations been declared irrational. Regulations must be rational The Supreme Court of Appeal has recently held that regulations can be struck down because they lack rationality. The court stated that: ‘Rationality, as a necessary element of lawful conduct by a functionary, serves two purposes: to avoid capricious or arbitrary action by ensuring that there is a rational relationship between the scheme which is adopted and the achievement of a legitimate government purpose, or that a decision is rationally related to the purpose for which the power was given, and to ensure the action of the functionary bears a rational connection to the facts and information available to him and on which he purports to base such action.’ (SA Predator Breeders Association v Minister of Environmental Affairs (72/10) [2010] ZASCA 151 (29 November 2010)) In other words- the regulations would have to be rational. That means there has to be a rational relationship between the new regulations and the ‘achievement of a legitimate government purpose’. The content of the regulations would have to be ‘rationally related to the purpose for which the power is given’. The minister’s regulation would also have to have a rational connection with the facts and information that were before him when he made the decision and upon which he wishes to base his action. In principle rationality always incorporates an element of proportionality so if the action or the regulation is found to be grossly disproportionate that is problematic and could bring the validity of the regulations into question. That relates to the information you have about trafficking actually not being a matter that warrants this treatment. There is however a note of caution. The Constitutional Court has also stated that ‘a decision that is objectively irrational is likely to be made only rarely but, if this does occur a court has the power to intervene and set aside the irrational decision’. (Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC)) Todays News Dave Marsh
Posted on: Wed, 13 Aug 2014 05:31:14 +0000