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[2018] ZAWCHC 47
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Nandutu and Others v Minister of Home Affairs and Others (11440/17) [2018] ZAWCHC 47; [2018] 3 All SA 259 (WCC) (18 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number 11440/17
In
the matter between
ROBINHA
SARAH NANDUTU FIRST
APPLICANT
JAMES
FERRIOR TOMLINSON SECOND
APPLICANT
ILIAS
DEMERLIS THIRD
APPLICANT
CHRISTAKIS
FOKAS TTOFALLI FOURTH
APPLICANT
And
THE
MINISTER OF HOME AFFAIRS FIRST
RESPONDENT
THE
DIRECTOR-GENERAL, DEPARTMENT
OF
HOME AFFAIRS SECOND
RESPONDENT
VFS
VISA PROCESSING (SA) (PTY)
LTD
T/A VFS GLOBAL THIRD
RESPONDENT
DATE: 18 APRIL 2018
JUDGMENT
THULARE
AJ
[1]
This is an application in terms of section 172(1)(a) of the
Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)
(the Constitution) to declare as invalid and inconsistent with the
Constitution, Regulation 9(9)(a) of the Immigration Regulations
(regulations) issued in terms of section 7 of the Immigration Act,
2002, (the Act) to the extent that the rights accorded by means
of
the exceptional circumstances contemplated in section 10(6)(b) of the
Act are not extended to the foreign spouse or child of
a citizen or
permanent resident. The application is opposed by the first and
second respondents.
[2] The remedy requested
by the applicants is that this court exercise its powers in terms of
section 172(1)(b) of the Constitution
by reading in the words:
“
(iii)
is the spouse or child of a citizen or permanent resident”.
This,
it is submitted, is in order to render Regulation 9(9)(a) valid and
consistent with the Constitution.
[3]
The constitutional challenge is based on the duty of the parties in a
marriage or life partnership to cohabit and to provide
each other
with support. The fact that the foreign spouse of a citizen or
permanent resident who holds a visitor’s visa is
not exempted
from the prohibition to apply for a change of status while in the
Republic, it is argued, impairs the ability of the
spouse to honour
that obligation and is therefore an unjustifiable limitation of the
right to dignity. It is further argued that
the fact that the foreign
accompanying spouse or child of the holder of a work or business visa
is exempted, but not the holder
of a visitor’s visa, is an
unjustifiable limitation on the right to equality.
[4] The first applicant
is an Uganda national who entered South Africa on 20 February 2015 on
a visitor’s visa issued in terms
of section 11(1) the Act. She
was three months pregnant at the time and was joining the father of
the expected child, the second
applicant who is a British citizen and
a holder of a permanent residence permit in South Africa. On 21 April
2015, two months after
her entry, she married the second applicant.
The two then consulted an attorney to assist them to apply for a visa
to enable her
to remain in South Africa for them to live as a couple
and as a family. Their son, Joshua, was born on 14 August 2015 in
South
Africa. Their application was not granted and the reasons were
provided as follows:
“
No
change of status or conditions attached to the temporary visa while
in the Republic in terms of
section 10(6)
of the
Immigration Act,
2002
.”
An
appeal to both the Director-General and the Minister were also
unsuccessful. Joshua’s birth is not registered as the first
applicant is not in possession of a valid temporary residence visa.
Joshua cannot apply for a passport or an Identity number.
[5] Third applicant is a
Greek citizen who entered South Africa on a
section 11(1)
visitor’s
visa. He is in a life partnership with fourth respondent who is a
South African citizen and they live together.
He applied for a
section 11(6)
visa to enable him to continue to cohabit with fourth
respondent. His application was rejected. The reasons were given as
follows:
“
No
change of status or conditions attached to the temporary residence
visa while in the Republic in terms of
section 10(6)
of the
Immigration Act of 2002
No documentation to
prove the financial support to each other and the extent to which the
related responsibilities are shared by
the applicant and his or her
spouse in terms of
section 3(2)(d).
”
An
appeal to both the Director-General and the Minister were
unsuccessful.
[6]
The issue is whether Regulation 9(9)(a) of the Immigration
Regulations is inconsistent with section 9 (equality before the law
and the equal protection and benefit of the law) and section 10
(inherent dignity and the right to have their dignity respected
and
protected) of the Constitution and therefore invalid; and if so what
is the appropriate remedy.
[7] Molemela AJCC set out
the correct approach to statutory interpretation as follows at para
12 to 14 in
Provincial Minister for Local Government etc, Western
Cape v Oudtshoorn Municipal Council and Others
2015 (6) SA 115
(CC):
“
[12]
This court has previously stated that when interpreting a statute,
judicial officers must consider the language used, as well
as the
purpose and context, and must endeavor to interpret the statute in a
manner that renders the statute constitutionally compliant.
[13] In Bertie van Zyl
this court stated that ‘the purpose of a statute plays an
important role in establishing a context
that clarifies the scope and
intended effect of the law’. It pointed out that a contextual
or purposive reading of a statute
must remain faithful to the actual
wording of the statute.
[14]
In National Coalition it was held that the legislation must be
interpreted in a way that promotes the spirit, purport and objects
of
the Bill of Rights but limited to what the text of the statute is
reasonably capable of meaning. This position was echoed in
Hyundai,
where Langa DP stated that ‘judicial officers must prefer
interpretation of legislation that fall within constitutional
bounds
over those that do not, provided that such interpretation can be
reasonably ascribed to the section’. He, however,
warned
against an unduly strained interpretation. These statements were
quoted with approval by this court in Democratic Alliance.”
[8] The first applicant,
a national of the Republic of Uganda and holding a passport issued by
the government of her country of
origin, applied for and was issued
with a visitor’s visa by the Republic of South Africa (RSA) at
Kampala on 19 February
2015. The visa was issued under the following
conditions, which were endorsed on it:
“
Enter
on or before: 2015.05.18.
EACH VISIT NOT TO
EXCEED 30 DAYS
FOR HOLIDAY PURPOSES
ONLY
MUST
HOLD A RETURN ONWARD AIR TICKET.”
[9]
It is a visa issued in terms of section 11(1)(a) of the Act
(reference to sections are to the Act) which may not exceed three
months and is renewable upon application to the Director-General (the
DG) of the Department of Home Affairs (DHA), which renewal
shall not
exceed three months. The requirements for such application are that
it be accompanied by a statement or documentation
detailing the
purpose and duration of the visit; a valid return air flight ticket
or proof of reservation thereof and proof of
sufficient financial
means contemplated in subregulation (3) – [regulation 11(1)].
The applicant was not required to make
an undertaking that she shall
not establish herself in RSA once admitted within the borders.
[10] Section 10(6) of the
Act reads as follows:
“
Visas
to temporarily sojourn in Republic
10. (6)(a) Subject to
this Act, a foreigner, other than the holder of a visitor’s or
medical treatment visa, may apply to
the Director-General in the
prescribed manner to change his or her status in terms and conditions
attached to his or her visa,
or both such status and terms and
conditions, as the case may be, while in the Republic.
(b)
An application for a change of status attached to a visitor’s
or medical treatment visa shall not be made by the visa
holder while
in the Republic, except in exceptional circumstances as prescribed.”
[11] The applicable
provisions of section 1 of the Act read as follows:
“
Definitions
and interpretation
1.
(1) “
prescribed
”
means prescribed by regulation.
[12] Regulation 9(9)(a)
reads as follows:
“
Visas
to temporarily sojourn in Republic
9. (9) The exceptional
circumstances contemplated in section 10(6)(b) of the Act shall –
(a) in respect of a
holder of a visitor’s visa, be that the applicant –
(i)
is in need of emergency lifesaving medical treatment for longer than
three months;
(ii)
is an accompanying spouse or child of a holder of the business or
work visa, who wishes to apply for a study or work visa;
or
[13] An unmarried woman
in Kampala, Uganda, in the position of the first applicant, who is
three months pregnant and on her way
to join the father of her unborn
child who is a man holding a permanent residence permit in RSA, has
another type of visitor’s
visa available to be applied for. It
is part of the composite commonly referred to as spousal visas. It is
provided for in section
11(6) which reads:
“
Visitor’s
visa
11. (6)
Notwithstanding the provisions of this section, a visitor’s
visa may be issued to a foreigner who is the spouse of
a citizen or
permanent resident and who does not qualify for any of the visas
contemplated in sections 13 to 22: Provided that
–
(a) such visa shall
only be valid while the good faith spousal relationship exists;
(b) on application,
the holder of such visa may be authorised to perform any of the
activities provided for in the visas contemplated
in sections 13 to
22; and
(c)
the holder of such visa shall apply for permanent residence
contemplated in section 26(b) within three months from the date
upon
which he or she qualifies to be issued with that visa.”
[14] There is no
explanation from the first applicant as to why she did not apply for
the section 11(6) visa. The further requirements
that the first
applicant would have had to meet for that spousal visa, to enable her
to sojourn in the Republic for a period exceeding
three months, were:
(a) a medical and
radiological report – [regulation 9(1)(c)],
(b) proof of a permanent
heterosexual or homosexual relationship as contemplated in regulation
3 – [regulation 9(1)(e)], and
(c) a
police clearance certificate – [regulation 11(2)].
[15] An accompanying
spouse of a holder of a business or work visa, and any other
foreigner who is a member of the immediate family
of a citizen or a
permanent resident, to be able to be admitted to and sojourn in the
Republic, has to meet requirements that are
equal to that of the type
of a spousal visa which was available to the first applicant which
she chose not to apply for when she
was admitted into RSA. The
further requirements for an accompanying spouse of a holder of a
business or work visa or any other
immediate family of a citizen or a
permanent resident are:
(a) a medical and
radiological report – [regulation 9(1)(c)],
(b) a marriage
certificate or proof of a relationship as contemplated in regulation
3 – [regulation 9(1)(e),
(c) a police clearance –
[regulation 11(2)] and
(d)
financial assurance.
[16]
“Accompanying” is not defined either in the Act or the
regulations. The regulations define “unaccompanied
minor”
as a child under the Age of 18 years who travels alone. The first
expression of this definition clearly refers to
the part “minor”.
The latter part of the definition gives an indication of the relevant
time periods applicable, and
in my view provides the context in which
the words and expressions used in these regulations are to be
interpreted. For these reasons,
in my view, “accompanying
spouse or child” means “the spouse or child going with at
the time of travel”.
It follows that section 10(6) and
regulation 9(9)(a) refers to a person who was a spouse or child of
a holder of a business
or work visa at the time of travel into RSA.
It means a person who was a spouse or child when he or she made the
journey from another
country through the port of entry into RSA.
[17]
The section and the regulation both envisage a spouse or child who
has been through the assessment process of the social, health,
economic and security risks to RSA at the time of admission into the
country. The definition of “spouse” includes a
person who
is a party to a permanent heterosexual or homosexual relationship
[section 1] and regulation 3 prescribes the documents,
interviews and
obligations of such spouse at the time of application for admission
into the country and during such person’s
sojourn in RSA. The
first applicant in my view, is not an “accompanying spouse”
as envisaged in the Act. She is simply
a visitor, and not a spouse,
in terms of the Act and the regulations.
[18] In my view, the
applicant ought to have applied for a section 11(6) visitor’s
visa as a spouse of a permanent resident
when she first entered RSA.
This would have enabled DHA to do a health, social, economic, and
security risk assessment at her admission
into RSA. Where she
made a conscious choice in respect of which fruit to pluck from the
tree of democratic RSA visas, she
cannot be heard to complain of the
taste of her section 11(1) visitor’s visa.
[19]
The right to life and the achievement of the realization of the right
to have access to health care are the foundations upon
which
regulation 9(9)(a)(i) is built, for a person who otherwise should
return to their home country. RSA in fulfillment of its
values allows
a regulation 11(1) visitor’s visa holder who is in need of
emergency life- saving medical treatment for longer
than three
months, to remain in the country for such purpose. Section 18(2)
provides that the holder of a relative’s visa
may not conduct
work. Regulation 9(9)(a)(ii) allows for a foreigner who is an
immediate family member of the holder of a business
or work visa,
which family member has already been assessed in relation to health,
social, economic and security risks to RSA at
the time of admission,
to approach the DG for authority to study or work in RSA.
[20]
In both instances covered by regulation 9(9)(a), the need to be met
requires the change of status of the applicant. In respect
of (i),
the desire to save the life of a section 11(1) visa holder in an
emergency situation forces provision for medical treatment.
In
respect of (ii), for all intents and purposes the DG simply allows
the foreigner to either study or work. In respect of (i),
the urgency
do not allow for delays, which delays may lead to substantial
injustice, irreparable harm and/or even death. In respect
of (ii)
there is no need for health, social, economic and security risk
assessments, as they have already been done at admission
of the
spouse or child. Information already available to RSA makes it
possible for the DG to apply his mind to both such applications
and
rule on them whilst the applicant is within the borders of RSA.
[21]
The status of a person is the creation of law. It consists of the
capacity to acquire and exercise legal rights and to perform
legal
acts [
Govu v Stuart
(1903) 24 NLR 440
at 441]. “Status” is a relative term and varies according
to the different laws of RSA. The object of the Act is the
regulation
of admission, residence and departure of individuals who are not
citizens of RSA. In my view, the status of a foreigner
who entered
RSA as a section 11(1) visitor and gets married whilst within the
Republic, differ from the ordinary standard accorded
to a foreigner
who entered RSA as an accompanying spouse in that rights of the
former fall short of those of the latter so that
what is law for the
latter is not law for the former.
[22] The status as a
spouse in terms of the Act, is not transmissible at marriage whether
within or outside RSA. It is acquired
at the time of admission of a
foreigner into the Republic. It is an official classification given
to an applicant determining their
responsibilities and rights. It is
a tool for RSA to control entry into, presence in and exit out of its
borders.
[23]
It is earned by those with moral accountability to properly apply for
an appropriate visa, capable of being trusted by RSA
and have met the
requirements for authorization to carry the title. In my view, the
marriage of the first applicant after entry
into the RSA did effect a
change of her status from a spinster to a married woman. She became a
spouse, but this did not transmit
to her the status of a spouse as
defined and envisaged in the Act. Her relationship with RSA is fixed
by the Act and how she stands
towards RSA is as ascribed to her by
RSA subject to certain obligations. Section 1(1) defines “status”
as meaning the
status of the person as determined by the relevant
visa or permanent residence permit granted to a person in terms of
the Act.
[24] It follows that I do
not agree with Donen AJ in
Stewart and Others v Minister of Home
Affairs and Another
12520/2015
[2016] ZAWCHC 20
(29 January 2016)
(unreported) when it is said at paragraphs 41 and 42:
“
[41]
… That is the “spousal visa” second applicant
seeks. No question of a change of status as described in s
10(6)(b)
of the Act therefore arises.
[42]
When the second applicant applied for a “spousal visa” it
could only have meant (a visitor’s) visa in terms
of s 11(6).
As an existing holder of a visitor’s visa (under s 11(1)) she
could not have been making an application for a
change of status
attached to a visitor’s visa.”
The
first applicant seeks to change her status from a section 11(1)
visitor to a section 11(6) spouse. She is not applying for a
renewal
or extension of a section 11(1) visa and amongst others is not
covered by the proviso in the definition of police clearance
in
Regulation 1.
[25]
The marriage of the first applicant within two months of entering RSA
whilst a section 11(1) visitor within the borders of
RSA did not and
cannot absolve her of her obligation to meet the requirements which
are to be met by a foreigner who aspires to
the status of a spouse in
terms of the Act and wishes to sojourn in RSA with some degree of
permanence. Her marriage bears no relationship
to the risks that her
health condition may expose to those within the borders of RSA or the
safety and security of inhabitants
of RSA or its sovereignty, which
are issues that the requirements for admission on a permanent basis
are intended to assess. DHA
as a national department, which is a
sphere of government that constitutes RSA, has a constitutional
obligation to secure the well-being
of the people of the Republic
[section 41(1)(b) of the Constitution]. A registrable ritual to prove
the constitution of a family,
which is sealed by the first applicant
kissing another is simply not enough to exempt her to account for her
health, social, economic
and security risks to RSA and its people.
[26]
The mere fact that a section 11(1) visitor is treated differently
from a section 11(6) visitor is not in itself a reason to
hold them
to be unconstitutional. A visitor is different from a spouse or child
in terms of the Act, and the reasons and the requirements
for their
admission and presence are different.
[27]
It is against this background that the provisions of section 10(6)
read with regulation 9(9)(a) are to be understood. Checks
and
balances have been considered and assessments done on the health,
economic, social and security implications on admission to
RSA of an
accompanying spouse or child of a holder of the business or work visa
or any other immediate family of a citizen or a
permanent resident.
Such checks and balances had not been done for a section 11(1)
visitor’s visa. In my view, section 10(6)
in its reference to a
visitor’s visa, is with specific reference to a section 11(1)
visa. This is an interpretation which
is in line with the purpose of
the legislation and the Constitution.
[28]
It is clear that the acquisition of legal representation did not help
the first applicant to understand the concept of status
as envisaged
in the Act. With the benefit of legal representation first applicant
still did not understand that a section 11(1)
visitor’s visa is
for a tourist who visits for a short period and that a section 11(6)
visa is for a spouse in her position
and that if she needs to be in
the country for three years she needs to apply for a section 11(6)
visa and not seek the extension
of a section 11(1) visa.
[29] With respect to the
attorney who handled this matter at Eisenberg De Saude Attorneys, the
inability to recognise the difference
in status between a section
11(1) visitor and 11(6) spouse is exhibited in the following
paragraph in the first applicant’s
appeal against the decision
of DHA that no change of status or conditions attached to the section
11(1) visa had occurred in terms
of section 10(6), in the letter to
the DG dated 25 October 2015:
“
(iv)
Our client resides in the Republic on a visitor’s visa issued
upon his arrival in terms of section 11(1) of the Act.
Our client
wishes to
extend
her visitor’s visa for three years
in
terms of section 11(6) of the Act to enable her to continue to reside
with her lawful spouse, Mr Tomlinson. Our client is
not
changing
her
status in terms of section 10(6) of the Act.”
[30] This paragraph of
the letter also reveals the true reason for the push. The first
applicant arrived in the Republic under section
11(1) visa, but seeks
the benefits of a section 11(6) visa without complying with the
requirements for admission under that subsection.
The wording chosen
by the first applicant in her request that this court read in words
into Regulation 9(9)(a), according to her
to render the regulation
valid and consistent with the Constitution further gives her
opportunistic tendencies to avoid accountability.
She requests the
insertion of:
“
(iii)
is the spouse of a citizen or permanent resident”.
[31]
In my view, the deliberate exclusion of the word “
accompanying”
is calculated to
specifically ward off the obligation of a foreigner to comply with
the requirements for a permanent sojourn simply
because he or she
married a citizen or permanent resident whilst within the borders of
RSA. This avoidance to account to RSA and
its people has the tendency
to make a marriage of a foreigner within the borders of RSA a
loophole for criminals and their syndicates
to avoid detection and
expose the country to being a safe haven for criminal activities,
including organized crime. It has the
tendency to expose the Republic
to attack, simply because those who pose security threats would
simply marry within our borders
to avoid detection. It has the
tendency to expose those within the borders of the Republic to health
risks which could have been
avoided, prevented or mitigated by
government. It has the tendency to compromise the welfare of the
people of RSA.
[32] Amongst the
requirements that the first applicant had to meet to qualify for a
section 11(6) visa, was to provide a police
clearance certificate. A
police clearance certificate is defined as follows in Regulation 1:
“
Definitions
1.
“
police
clearance certificate” means a certificate issued by the police
or security authority in each country where the relevant
applicant
resided for 12 months or longer after attaining the age of 18 years,
in respect of criminal records or the character
of the applicant,
which certificate shall not be older than six months at the time of
its submission: Provided that the certificate
shall not be required
from a foreign country in the case of renewal or extension of a visa
but from the Republic;”
A
person in the position of the first applicant, who has been in RSA
since 2015, must provide DHA with at least two police clearance
certificates, to wit, the one issued by the relevant authority in
Uganda, and the one issued by the relevant authority in RSA.
If she
had resided in any other country for 12 months or longer, she is
required to provide DHA with police clearance certificates
from the
relevant countries as well.
[33]
Furthermore, the applicant for a section 11(6) visa has to provide a
report by a registered radiologist certifying that the
applicant has
been examined and that no signs of active pulmonary tuberculosis
could be detected, which report shall not be older
than six months at
the time of its submission [see definition of radiological report in
Regulation 1 read with regulation 9(1)].
Such applicant should also
provide a report by a registered medical practitioner with regard to
their general state of health,
detailing any medical condition he or
she suffers from, which report shall not be older than six months at
the time of its submission
[definition of medical report in
Regulation 1 read with Regulation 9(1)]. The applicant also had to
submit an affidavit confirming
the continued existence of the
permanent homosexual or heterosexual relationship [Regulation 3(1),
(2) read with regulation 9(1)(e)].
[34]
In my view, on the papers before me, no case is made out that the
first applicant submitted the relevant documents in order
to satisfy
the DG that she met the requirements and qualified for the issue of a
section 11(6) visa. Her case is distinguishable
from that of
Stewart,
supra.
From day one
whilst in Zimbabwe, Mrs Stewart applied for a section 11(6) visa and
was let down by the officials at the RSA mission
in that country as
to how they chose to classify her and what visa they issued to her.
After her entry into RSA, she was alerted
to what was missing on the
requirements to meet the status that she aspired for, and she
travelled to Zimbabwe to obtain a police
clearance certificate of
that country, in order to meet the requirements for a spousal visa.
There was nothing to gainsay that
Mrs Stewart met the requirements
for a section 11(6) visa.
[35]
The authority to issue a section 11(1) or (6) visa is that of the DG.
Ordinarily, the DG is represented by officials of DHA
throughout the
Republic, who accepts applications and make decisions thereon in line
with the authority and powers delegated to
them as the DG deems meet.
RSA sent deputations and missions to Uganda. The body of persons
representing the RSA in Uganda is entrusted
to represent the
government of the Republic. DHA has a responsibility to uphold the
principle of co-operative government and intergovernmental
relations
which places a duty on its officials at its national office to
preserve the national unity and the indivisibility of
the Republic as
envisaged in section 41(1)(a) of the Constitution. This obligation,
in my view, negates the elevation of an application
for change of
status from a section 11(1) visitor to a section 11(6) spouse filed
at a foreign mission of RSA in Kampala, Uganda,
to some special
status which is more equal than the same application lodged at any
office of DHA within RSA where the DG is represented.
[36]
There is an obligation on officials of DHA within the country to
co-operate with either their national office or missions of
RSA in
foreign countries in mutual trust and good faith, consulting one
another on matters of common interest or guidance or co-ordination
of
actions or adherence to agreed procedures. The failure of DHA to put
such systems in place, in my view, should not be visited
on foreign
nationals seeking to enter, sojourn or depart from RSA. The answer
should lie in strategies that seek to place DHA and
its officials to
be loyal to the Constitution, the Republic and its people [section
41(1)(d)].
[37]
The question, in my view, should be whether an applicant has filed an
application together with all supporting documents, accompanied
by,
complying with and that meet the requirements for the issue of the
visa which confers the status applied for, to a person who
has the
authority to represent the DG and has the delegation and power to
decide on that application, and not whether the applicant
is
submitting the change of status application whilst in Kampala, Uganda
or in the City of Cape Town, RSA at the time of application.
[38] Section 31(2)(c) of
the Act provides as follows:
“
Exemptions
31. (2) Upon
application, the Minister may under terms and conditions determined
by him or her –
(c) for good cause,
waive any prescribed requirement or form; …”
A
person issued with a section 11(1) visa who meets the requirements
for the change of status to a section 11(6) in terms of the
Act may
apply to the Minister for waiver. Section 31(2)(c) does not allow the
Minister to waive the requirement in the Act. This
means that the
Minister may not waive what section 10(6)(b) provides for. The
section allows the Minister to waive any prescribed
requirement or
form, which in my view means that the Minister may waive what is
provided for in the Regulations that the Minister
made in terms of
section 7. Such applicant has to show good cause.
[39]
Where the Minister is satisfied that good cause has been shown, for
purposes of that application only, in my view, the Minister
may deem
the facts set out upon which good cause is shown as sufficient to
waive the requirement of the exceptional circumstances
as set out
Regulation 9(9). In my view the applicant will still be covered by
the exception in section 10(6)(b), and the applicant
will be able to
lodge his or her application while in the Republic.
[40]
On the papers filed by the first applicant, there is no indication
that she had applied for the waiver in terms of section
31(2)(c) to
lodge her papers in South Africa and not in Kampala. As a result, the
Minister was never taken into first applicant’s
confidence
through the disclosure of facts set out upon which it was submitted
that good cause existed for the waiver. It is simply
premature of me
to express a view on a waiver, which expression will simply be
speculative conjecture, for nothing can come out
of nothing.
[41] It is against this
background that the decision of officials of DHA, the DG and the
Minister on first applicant’s application
is to be understood.
Consistently, the reason was set out in the following terms by all
three:
“
NO
CHANGE OF STATUS OR CONDITIONS ATTACHED TO THE TEMPORARY VISA WHILE
IN THE REPUBLIC IN TERMS OF
SECTION 10(6)
OF THE
IMMIGRATION ACT
2002
.”
As
already mentioned, neither in the application to the respondents and
the appeals lodged nor in the papers before this court does
it appear
that the first applicant filed an application with supporting
documents which complied with the requirements for her
to qualify for
a
section 11(6)
visa to be issued to her. She further did not apply
for waiver of the requirements by the Minister, setting out facts
upon which
she relied that good cause existed for the waiver of the
requirement for her to apply from outside the Republic.
[42]
It is simply untrue for first applicant to allege that the only
reason for the respondents to reject her application is that
she
submitted her application within the Republic. As shown it is further
untrue to suggest that
Regulation 9(9)
is a total bar for
consideration of an application for change of status whilst an
applicant is within the Republic. If there is
any material error of
law, it is found in the interpretation of the Act and the Regulations
attributable to the advice which first
applicant received, which she
verily believe to be correct and not in the provisions of the Act and
the Regulations.
[43] Confirmation of that
material error of law found in interpretation of the Act also finds
expression in third applicant’s
affidavit, para 15, which read
as follows:
“
15.
… As I was currently residing in South Africa on a visitor’s
visa issued in terms of section 11(1) of the Act,
I was merely
wishing to extend my visitor’s visa for three years in terms of
section 11(6) of the Act to enable me to continue
living with the
second applicant.”
From
the facts the last words should read fourth applicant as earlier in
the affidavit third applicant alleges that he is in a life
partnership with fourth applicant who is a citizen of RSA.
[44]
Third applicant is a Greek citizen who was also admitted into RSA on
a section 11(1) visa and applied for a section 11(6) visa
whilst
within the RSA. He had lived together with the fourth applicant in an
exclusive relationship and need to be enabled to continue
to cohabit
with his partner in RSA. It is simply legally impossible to extend a
visitor’s visa issued in terms of section
11(1) to a spousal
visa provided for in terms of section 11(6). One cannot, in law and
in terms of the Act, extend one status into
another different status.
[45] Third applicant’s
application was rejected and the same terms used in rejecting first
applicant’s application were
advanced by DHA officials, except
that in his case there was a further reason set out in the following
terms:
“
No
documentation to prove financial support to each other and the extent
to which the related responsibilities are shared by the
applicant and
his or her spouse in terms of regulation 3(2)(d)”.
The
third applicant also applied for authorization to work as a
freelancer, or independent service provider.
[46]
Third applicant submitted a medical report from Dr De Kock, a
radiological report from Dr K Naidu of Drs Schnetler Corbett
and
Partners, what purports to be a police clearance from Greece, a
letter and affidavits from fourth applicant and himself confirming
their relationship including a notarial cohabitation agreement
between them as well as bank statements of fourth applicant to show
his financial means.
[47]
In my view, third applicant is required to submit a police clearance
from RSA in relation to the period from the date of his
admission
into the country to the date of his application, as he has resided in
the Republic for longer than 12 months. Furthermore,
the third
applicant is required to submit confirmation from the relevant
authority in Greece indicating that he has not lived in
any other
country for a period of 12 months or longer after he attained the age
of 18. If he had resided in another country for
12 months or longer
after attaining the age of 18, he is required to also submit a police
clearance from such country. This in
my view is necessary to meet the
purpose for which the police clearance is sought to enable DHA to do
its security assessment.
The third applicant did not submit these
documents.
[48]
Third applicant submitted a document which purports to be a copy of
his penal record, in lieu of the police clearance certificate.
Generally, countries use fingerprints, bodily features like
photographs and other scientific evidence from the body of a person,
present in that country for purposes of identification. Secondly, RSA
use diplomatic channels to receive official documents held
by another
country in respect of official business in relation to persons within
its borders. It remains unclear as to how it was
possible to identify
third applicant in Greece whilst he was within the borders of RSA at
the time of the issue of his purported
penal record. It remains
unclear as to how the document found its way from Greece into RSA.
[49]
In an application for a section 11(1) visa, it is understandable that
this particular section require of the foreigner who
applies for the
visa to provide the financial or other guarantee as proof of
sufficient available financial resources. The third
applicant
submitted bank statements of fourth applicant. Regulation 11(3)
requires that it be bank certified statements. I am unable
to trace
any certificate from the bank, not even a bank stamp, duly dated and
signed appended to the statements submitted by third
applicant.
[50]
Third applicant completed a pro forma form prepared and issued by DHA
in Government Gazette 37679 dated 22 May 2014, (DHA-1712A)
also known
as Form 12. It is titled
“
AFFIDAVIT
IN RESPECT OF PARTIES TO PERMANENT HOMOSEXUAL OR HETEROSEXUAL
RELATIONSHIP”
and
makes reference to section 7(1)(g), read with section 11(6) and 26(b)
and regulations 3(2) and (4). Section 7(1)(g) provides
for the power
of the Minister to make regulations relating to forms whereas section
26(b) provides for the DG to issue a permanent
residence permit to a
spouse of a citizen or permanent resident. Regulation 3(2)(d)
provides as follows:
“
Permanent
homosexual or heterosexual relationship
3 (2) An applicant
contemplated in subregulation (1) must submit –
(d) documentation to
prove –
(i) the financial
support of each other; and
(ii)
the extent to which the related responsibilities are shared by the
applicant and his or her spouse;”
[51] Form 12 has a DHA
typed paragraph which reads as follows:
“
To
substantiate our relationship we attach documentation proving
cohabitation and the extent to which the related financial
responsibilities
are shared by us.”
An
affidavit of fourth respondent is attached in which he confirms the
relationship, cohabitation and the reciprocal obligation
of emotional
and financial support. He further alleges that third applicant
contributes to the property rental whilst he contributes
to the day
to day living expenses and that third applicant would start
contributing on an equal basis once he has obtained authorization
to
work in RSA. Third applicant submitted a confirmatory affidavit. The
two also submitted a notarial cohabitation agreement which
regulates
their relationship. In my view, in the absence of countervailing
evidence, the respondents have no reason not to accept
these
allegations as sufficient proof of the financial support to each
other and the extent to which the related responsibilities
are shared
by third and fourth applicant. It follows that in my view, the
further reason provided by DHA on 14 May 2015 for
the rejection of
third applicant’s application, as earlier referred to, cannot
be sustained by the facts.
[52] The decision on the
appeal lodged by third applicant somewhat muddies the waters. The
relevant part reads as follows:
“
I
wish to inform you that I have decided to uphold the decision to
reject your application for a temporary residence visa. No contract
of employment to support the category 11(6) which applicant applied
for in terms of Regulation 11(7(a).”
In
my view, what remained outstanding were proper police clearance
certificates as well as proper financial assurance as required
in the
Act and the regulations. It has to be mentioned that whereas for a
section 11(1) visa the financial assurance should be
provided by the
applicant, in my view, for a section 11(6) spouse such prescribed
financial assurance may be provided by the citizen
or permanent
resident who is the spouse of the applicant. Section 18 of the Act
provides that guidance. The person who considered
the appeal may have
lost themselves in their reasoning because of the third applicant’s
application to be allowed to conduct
freelance work. The work was an
irrelevant factor, having regard to the requirements to be met for a
spousal visa. It is only on
specific application to the DG that the
spouse may be authorised to work and only to that extent may a
contract of employment be
a relevant factor to be considered.
[53] On third applicant’s
appeal to the Minister, the reasons for the decision are provided as
follows:
“
I
wish to inform you that I have decided to uphold the decision to
reject your application for a Visitor’s visa in terms of
section 11(6) of the Immigration Act 2002, ( Act No 13 of 2002) as
amended. My decision is based on the fact that any person holding
a
visitor’s visa or medical treatment visa may not change the
status of his/her visa whilst in the Republic.”
[54] The Minister appear
to hold the view that a person holding a section 11(1) visa may not
change the status to a section 11(6)
visa whilst in the Republic.
Clearly, the Minister’s attention was not drawn to the
provisions of section 31(2)(c) read with
regulation 9(5). Regulation
9(5) reads as follows:
“
Visas
to temporarily sojourn in Republic
9. (5) A foreigner who
is in the Republic and applies for a change of status or terms and
conditions relating to his or her visa
shall –
(a) submit his or her
application on Form 9 illustrated in Annexure A, no less than 60 days
prior to the expiry date of his or her
visa; and
(b) provide proof that
he or she has been admitted lawfully into the Republic,
Provided
that no person holding a visitor’s or medical treatment visa
may apply for a change of status to his or her visa
while in the
Republic, unless exceptional circumstances set out in subregulation
(9) exist.”
[55]
Where the holder of a visitor’s visa sets out facts which in
the opinion of the Minister constitutes good cause, in terms
of
section 31(2)(c) the Minister has the power to waive the prescribed
exceptional circumstances as set out in regulation 9(9).
In my
view, where the requirement for exceptional circumstances is provided
for in the Regulations made by the Minister, and the
Minister waives
such requirement for an applicant as provided for by the same
Regulations, the waiver should suffice to satisfy
the exception in
section 10(6)(b). Once the Minister grants the waiver, the holder of
a section 11(1) visitor’s visa should
be able to apply for a
section 11(6) spousal his/her visa whilst in the Republic.
[56]
Upon application and on good cause shown, the Minister may waive the
requirement in regulation 9 (9) (a). Nothing in my view
precludes the
Minister to provide such waiver on those terms as to the Minister
deems meet. In considering the application for
waiver, the Minister
has a discretion which is exercised upon consideration of all the
facts. It is a question of fairness to both
the Republic of South
Africa and the applicant. In that application relevant considerations
for the Minister includes the explanation
for the application and the
prospects of success of a section 11 (6) application.
[57]
The respondents are not without recourse should the first and third
applicant fail to submit the necessary documents in support
of their
application to qualify for a section 11(6) visa whilst within the
Republic, after they have been given a reasonable opportunity
to do
so, even if the waiver had been granted. They could be ordered to
depart [section 32] failing which they may be arrested,
detained and
deported [section 34].
[58]
An application for change of status while the applicant is within RSA
requires verification of documents allegedly issued by
the relevant
authorities. The application for relevant documents from their home
country remains an issue between an applicant
and his or her home
country. However in my view, the best way for RSA to receive
authentic documents while an applicant is within
its borders is
through diplomatic channels.
[59]
I am not persuaded that the first and third applicants have submitted
all the supporting documents necessary to show that they
have a right
in law to the section 11(6) spousal visa. I am further not persuaded
that the applicants have been subjected to prejudice
or a real threat
of prejudice as a result of the provisions of the Regulations. I am
not persuaded that Regulation 9(9)(a) prohibit
a foreign spouse of a
citizen or permanent residence who holds a section 11(1) visitor’s
visa from remaining in South Africa
while his or her application for
a section 11(6) spousal visa is being submitted to and considered by
the DG.
[60]
I am not persuaded that section 10(6)(b) read with Regulation 9(9)
has been established as an infringement of the right to
human
dignity. To the contrary, read within the context of other provisions
of the Act, the Regulations are structured in such
a way that they
may afford protection to the core element of the institution of
marriage which is to live together as spouses in
the community of
life in that the Minister require “good cause” for a
section 11(1) visitor in lieu of “exceptional
circumstances”
for others.
[61]
The requirement does not offend equal treatment of a section 11(1)
visitor’s visa holders who wishes to apply for a section
11(6)
spousal visa when compared to an accompanying spouse of a holder of
the business or work visa who wishes to apply for a study
or work
visa. The Regulations enhance parity and not inequality of the two
classes of spouses. By extension, the provisions read
within context
help to allow the section 11(1) visitor an opportunity to undergo the
health, social, financial and security assessment
for their admission
to acquire some degree of permanence, like an accompanying spouse of
a holder of a business or work visa already
did at their admission.
[62]
It follows that Regulation 9(9) of the Regulations made by the
Minister of Home Affairs in terms of section 7 after consultation
with the Immigration Advisory Board, is not inconsistent with the
Constitution. The provisions, read in context, are reasonably
capable
of an interpretation which would be consistent with the Constitution
[
S v Bhulwana, S v
Gwadiso
1996(1) SA
388 (CC) para 28]. The fact that officials of DHA, who are generally
immigration officials and have no legal training,
interpreted the
provisions otherwise does not render the provisions solely for that
misinterpretation unconstitutional.
[63]
In my view, the applicants seek to seize an unfair advantage out of
the misinterpretation by administration officials, through
an
extension to themselves of such undue benefits as to include their
circumvention of the Act. As persons whose risks to the Republic
have
not been assessed, they have a provision in the Act that provides a
remedy which exposes them to no prejudice whatsoever.
The remedy
accords with the checks and balances built into the Act and it is not
inconsistent with the Constitution. They are not
entitled to marry or
establish heterosexual or homosexual relationships with citizens or
permanent residence permit holders and
thereby avoid compliance with
the checks and balances built into the laws of this country for
admission to sojourn with a degree
of permanence.
[64] In
Mistry v
Interim Medical and Dental Council of South Africa
1998(4) SA
1127 at para 24 the Constitutional Court said:
“
[24]
In S v Makwanyane and Another this Court held that there was no
absolute standard which could be laid down for determining
reasonableness and justifiability. Principles could be established,
but the application of those principles to particular circumstances
could only be done on a case by case basis:
“
This
is inherent in the requirement of proportionality, which calls for
the balancing of different interests. In the balancing process
the
relevant considerations will include the nature of the right that is
limited and its importance to an open and democratic society
based on
freedom and equality; the purpose for which the right is limited and
the importance of that purpose to such a society;
the extent of the
limitation, its efficacy and , particularly where the limitation has
to be necessary, whether the desired ends
could reasonably be
achieved through other means less damaging to the right in question.”
It
is not preferable to lay down an absolute standard for use by the
Minister when he considers applications by section 11(1) visitor’s
visa holders who apply for a section 11(6) spousal visa and a section
31(2)(c) waiver.
[65]
The Legislature generally reserves matters of policy for the
Executive arm of the State when drafting laws. The decision to
waive
prescribed requirements is not only influenced by issues of legality,
but also issues of policy which do not generally fall
within the
judicial authority of the courts. Judicial restraint demands that I
not venture into the determination of circumstances
which may be
deemed by the Minister to be reasonable and justifiable to constitute
“good cause” in order to waive any
prescribed
requirement. The decision to permit to remain in the country a person
whose risk to the RSA and its people had not yet
been assessed, is a
policy-laden decision best left to the Minister.
[66]
In concluding, the silence which is too loud to be ignored in these
proceedings, is that of the 2 year old Joshua, first applicant’s
son. Because of the dispute between the parties, his birth has not
yet been registered. He is a child without an official name,
parents,
identity and nationality. The best interests of Joshua require the
matter regarding the status of first applicant to be
attended to with
urgency.
For
these reasons I make the following order:
1.
The application is
dismissed.
2.
First and third
applicants are granted leave to submit their applications in terms of
section 31(2)(c) of the Act to the Minister,
for good cause, to
consider waiving the requirement as prescribed in Regulation 9(9)
within 30 days of the date of this order or
within such longer period
as the Minister may determine.
3.
Pending the decision of
the Minister on the section 31(2)(c) applications, immigration
officials and the Director-General, Department
of Home Affairs are
directed not to refuse applications, together with supporting
documents as prescribed, by holders of valid
section 11(1) visitors’
visa for a section 11(6) spousal visa only because such applicants
are within the Republic, unless
the Minister had dismissed the
section 31(2)(c) application of such applicant or other good cause is
established for such refusal.
4.
First and second
applicants are granted leave to submit their applications with
supporting documents, as prescribed for a section
11(6) spousal visa,
within 30 days of this order or within such longer period as the
Minister may determine or prescribe.
5.
The Director-General,
Department of Home Affairs, is instructed to assist the child Joshua
in having his birth registered, failing
which the Director-General of
the Department of Home Affairs, or his designate, is to appear before
the Children’s Court,
Bellville, on Wednesday 16 May 2018 at
9H00 or so soon as the matter may be heard, to give reasons for the
failure, and for the
Children’s Court to make an order it deems
just and in the best interests of the child.
6.
No cost order is made.
………………………………………………
.
THULARE
ACTING
JUDGE OF THE HIGH COURT
Counsel
Appellant: Advocate L de
la Hunt
Respondent:
Advocate N Mangcu - Lockwood
Instructing Attorneys
Appellant: G
Eisenberg/Eisenberg and Associates
Respondent: Ms. Lombard
/STATE ATTORNEY
JUDGMENT
READ AND DAY(S) IN COURT: 18 April 2018