Cabinet changed this schema by turning the Board from a regulatory agency into a merely advisory one, returning the power of regulation-making to the
Minister. However, because of my pressures, Cabinet agreed to maintain the regulation-making process in a manner which forces the Minister to produce
regulations which were consistent with the advice of the Board and which took into account the public inputs. This was achieved through a two-stage process of
public comments. In the first stage, the notice of intention to draft regulations with the contents thereof had to be published first and be followed by actual
draft Regulations. In the second stage, the Minister would publish final regulations along with a summary of all the comments received and a justification why
he or she departed from the comments of the public or the advice of the Immigration Advisory Board. This restricted the ministerial discretion enormously, as
courts of law were empowered to assess whether the rationale given by the Minister was arbitrary or capricious against the comments received and void the
regulation if it was. This may seem cumbersome, and yet it is the way in which regulations have been made for many decades in countries like the United States .

I apologise for this lengthy introduction which now enables me to come back to Mr Eisenberg. A provision in the Immigration Act enabled me to issue the
first set of interim regulations without following the process I described and merely to get the ball rolling. When I did so, Mr Eisenberg took me to court stating
that I had no such power. To the best of my knowledge that was the first public interest law suit brought by a lawyer, not on behalf of a client, but in the
general interest of the rule of law and the South African people.

It was a most annoying and irksome action, but a most admirable one.

Mr Eisenberg, with the valiant assistance of Advocate Anton Katz, spent his own money and effort to make a point in the general interest. He won
at the High Court level and we appealed directly to the Constitutional Court . This appeal was a watershed event, because on this occasion the
Constitutional Court not only recognised Mr Eisenberg's locus standi , thereby setting a general rule for public advocacy litigation, but went one step further.
For the first time, the Constitutional Court asserted its jurisdiction on the validity of subordinate legislation and even administrative actions, and held that
the validity of a regulation was a constitutional issue within its jurisdiction. The facts of the case almost forced such holding, because if the regulations
were invalid, there would have been a huge lacuna due to the Immigration Act being incapable of being implemented without regulations. Nonetheless the holding
of the court was of general application and the legal fraternity and the South African people now have an opportunity to resort to constitutional justice, which is
much greater than in most other countries. We owe this to Mr Eisenberg.

Mr Eisenberg lost the case and my interim regulations came into force. But he did not give up his self-assumed role of watchdog over my actions and those of
my Department. I must say, in many respects, the legal oversight which I, as Minister of Home Affairs, received from Mr Eisenberg was more intense, competent
and productive than what I received from the parliamentary portfolio committee. In this respect Mr Eisenberg has given an example which ought to be followed by
the entire legal fraternity of how lawyers can protect our democracy and hold Ministers accountable through the judicial process. Every time Mr Eisenberg felt that
my Department was getting out of line, he would sue, and I praise and admire him for that.

He was not deterred by the fact that in the end he lost his first challenge on the Immigration Act in respect of the interim regulations and soon brought
an even more momentous one. Again, a few words of background.

Mr Eisenberg was one of the main participants in the regulation-making process. He made enormous contributions in criticising the interim regulations and
I had to spend long nights reading what he wrote, and agreeing with him where I had to, and labouring on a reply or comment where I could not see my way
clear to go along with his suggestions. He was not the only one. We received many contributions from people like Advocate Katz, Julian Pokroy, Chris Watters
and Julia Willand, and from various organisations such as Cosatu, Business South Africa, chambers of commerce and other trade unions, to name but a few.

To understand the unique nature of this process, one must think about the following. First a most representative and qualified body such as the
Immigration Advisory Board went through the regulations line by line and expressed extensive comments on the record. Then a senior Minister of State like me
had to burn the midnight oil with my officials and advisers going meticulously through each submission to assess their value and provide comments and reply.
I went through this process with the involvement of my entire Department. A special task team was set up to advise me on each of the submissions. This team
was led by the meticulous work of Mr Claude Schravesande, who acted under the indefatigable supervision of the ever-loyal Mr Ivan Lambinon and
Mr Awie van der Westhuizen.

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