I instructed my less-than-cooperative then Director-General to make the document public, and this was not done for several months. My third instruction was r
esponded to with a letter from my Director-General in which he openly refused to comply, stating three grounds. First, that if the document became public,
applicants would adjust their circumstances to meet its requirements and therefore gain the sought-after immigration benefits. Second, that if the document
was published people like Eisenberg would sue the Department every time the Department did not comply with its own prescriptions. Third, if published,
the Department could not change the law easily anytime it wanted to. Besides being a theorem of autocracy, the letter clearly identified Eisenberg as the
Department's nemesis and grand opponent. This gave me great sympathy for this lonely voice of reason.

In the end, I succeeded in making the Immigration Code public by announcing my instruction in Parliament, which forced my Director-General to stop defying me.

But that was just the beginning. One piece of litigation after another undermined the entire system of migration control, breaking down the inequity and injustice
built into it. Many of them were constitutional challenges brought by Mr Eisenberg who often used Advocate Anton Katz, who really must receive a
special mention and recognition for what he did.

The constitutional litigation in the field of migration control had an enormous impact on the rest of the legal system. Because of these challenges, the
courts recognised the right of South African spouses to see their foreign spouses receiving permanent residence. Additional litigation extended this benefit
first to heterosexual life partners and then to homosexual life partners, creating the basis on which the recognition of life partnerships of both a heterosexual
and a homosexual nature became a cornerstone of our legal system also in respect of other fields.

I must mention that when this challenge of constitutionality was brought against my Department, we realised that we were wrong in prohibiting the recognition
of life partnerships and brought the matter to Cabinet to seek authorisation to concede, but we were specifically instructed to resist. When we lost, I was
specifically instructed to appeal, with a corollary request by Minister Asmal that I should pursue the appeal as energetically as possible, in spite of my having
submitted to Cabinet two senior counsels' opinions that the case could not be won. In the end, we lost and the advocates of constitutionalism
like Mr Eisenberg won.

I could mention many cases bought by Mr Eisenberg which broadened the spaces of freedom and liberty for all South Africans, but such discussion would
be more suited to a book than to the brevity to which I have committed my remarks. Nonetheless, I want to mention two cases which are of importance
for our jurisprudence. Again, a few premises are necessary.

In formulating the Immigration Act I tried to do more than create an objective, efficient and just system of migration control. I also tried to create a good piece of legislation which could set an example for how the rule of law can be enhanced by Parliament, rather than undermined. The Immigration Act was the end result of a five year process of policy formulation, which really started as an open-ended process. We had no preconceived ideas and, unlike other pieces of legislation, we did not first decide what the policy should be and then begin a green and white paper process to give legitimacy to our decision. The Bill was produced by experts, stakeholders and role players through a process of extensive consultations which included two international conferences. The Bill never went through any political party structures and was never vetted by them, which perhaps was what made it so controversial and spelt out its final downfall.

During this process we came to realise that a regulated open policy for migration is good for South Africa . We saw the absurdity of a system which is impotent and hopeless in respect of the millions of people who are illegally in the country, but harsh and unaccommodating in respect of the few who apply for permits. Our policy was that of opening the front door to legal migration, while closing the back door to the illegal one.

We realised that in the field of migration control, like in many others, the actual content of the law ends up being set out in the details of regulations prescribing
the qualifications, the amount of money or the burden of proof needed for a permit. By changing these thresholds one can change the entire system with
no parliamentary intervention. In migration control more than in other fields, both the devil and God were in the details set out in regulations. In our tradition,
usually Acts authorise Ministers to write regulations and usually a Minister can do whatever he or she wants in respect of it, for as long as he or she does not
exceed their statutory authority. For as long as one does not go ultra vires , there is no review or assessment of the actual content of regulations. This seemed
to be iniquitous and irrational, especially in a field in which a department carried a legacy of hostility towards foreigners.

We looked around and discovered how, in advanced democracies, regulation-making has not been left to the discretion of Ministers for almost 70 years
and is conducted by regulatory agencies. Therefore, in our Bill we made provision for the regulations to be drafted by two players, namely the Immigration
Board - in which all relevant stakeholders were represented - and the public, with no involvement of the Minister. The Immigration Board would need to receive
public comments and produce regulations, the rationality of which could also be assessed by a court of law on the basis of the comments received. The Minister
would have no input.

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