January 1998 in a blanket refusal of such exemptions to foreign same-sex partners of South African permanent residents. This refusal was embodied in a letter of the same date from the DG to the first applicant in which the following was, amongst other things, stated:
“In terms of section 28 of the Act the Minister may only grant exemptions where there are special circumstances which justify such a decision. In view of the steady flow of applications for exemptions, one can hardly argue that special circumstances exist in any of these cases as contemplated by the said section of the Act.
The mere fact that the Aliens Control Act, 1991, does not cater for same-sex relationships cannot be considered as ‘special circumstances’ for the purposes [of] exercising the powers of exemption under that Act. In view of the above consideration, it has been decided not to grant exemptions under section 28 of the Act merely to accommodate alien partners in same-sex relationships.” [Emphasis in the original]
The first applicant took various steps on behalf of certain of the applicants and other foreign partners in same-sex relationships to ameliorate their position in regard to the granting of exemptions under section 28(2) of the Act and otherwise, but to no avail, and ultimately the application was launched in the High Court.
The ripeness of the matter for hearing
Although, in the High Court, the question of mootness was also raised by the
- A case is moot and therefore not justiciable, if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law. Such was the case in JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1996 (12) BCLR 1599 (CC); 1997 (3) SA 514 (CC), where Didcott J said the following at para 17:
“[T]here can hardly be a clearer instance of issues that are wholly academic, of issues exciting no interest but an historical one, than those on which our ruling is wanted have now become.”
See also President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others 1999 (11) BCLR 1219 (CC); 1999 (4) SA 682 (CC) at paras 12–16, 18, 23 and Chaskalson et al