CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 176/22
In the matter between:
TEREZA RAYMENT First Applicant
THIERRY ANTOINE GONDRAN Second Applicant
TAPIWA TEMBO Third Applicant
TEREZA RAYMENT obo
TR AND JR Fourth Applicant
THIERRY ANTOINE GONDRAN obo
MG AND EG Fifth Applicant
TAPIWA TEMBO obo
KM Sixth Applicant
and
MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR-GENERAL, DEPARTMENT
OF HOME AFFAIRS Second Respondent
DEPUTY DIRECTOR-GENERAL, DEPARTMENT
OF HOME AFFAIRS Third Respondent
DEPARTMENT OF HOME AFFAIRS Fourth Respondent
And in the matter between
2
RICHARD WILLIAM ANDERSON First Applicant
RICHARD WILLIAM ANDERSON
obo CJA Second Applicant
JOSHUA OKOTH OGADA Third Applicant
JOSHUA OKOTH OGADA AND
TANYA ESTELLA BOSCH
obo MWO Fourth Applicant
and
MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR-GENERAL, DEPARTMENT
OF HOME AFFAIRS Second Respondent
DEPUTY DIRECTOR-GENERAL, DEPARTMENT Third Respondent
OF HOME AFFAIRS
DEPARTMENT OF HOME AFFAIRS Fourth Respondent
Neutral citation: Rayment and Others v Minister of Home Affairs and Others;
Anderson and Others v Minister of Home Affairs and Others
[2023] ZACC 40
Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Mathopo J, Potterill AJ, Rogers J and Theron J
Judgments: Zondo CJ (unanimous)
Heard on: 28 February 2023
Decided on: 4 December 2023
Summary: Immigration Act 13 of 2002 — invalidity of sections 10(6), 11(6)
and 18(2) — Immigration Regulations — invalidity of regulation
9(9)(a) — inconsistent with the Constitution
Sections 8, 21 and 28 of the Constitution — children’s rights —
section 36 of the Constitution — unjustifiable limitation
3
ORDER
On application for confirmation of the order of the Western Cape Division of the
High Court, Cape Town (Sher J):
Part A
1. The orders in paragraphs 1 to 7 of Part A apply to all applicants other than
Mr T Tembo in both capacities in which he features as an applicant.
2. The appeal by the applicants is upheld only to the extent reflected below.
3. It is declared that sections 10(6), 11(6), and 18(2) of the Immigration Act
13 of 2002 ( “Immigration Act ”), and regulation 9(9)(a) of the
Immigration Regulations, 2014 published under GN R413 in
Government Gazette 37679 of 22 May 2014 (as amended)
(“the Regulations”), are inconsistent with the Constitution of the Republic
of South Africa, 1996, and invalid, to the extent that they—
3.1. require a foreigner who:
3.1.1. is the holder of a section 11(6) visa;
3.1.2. is a parent of a child who is a citizen or permanent resident;
and
3.1.3. is currently fulfilling his or her responsibilities to that child,
or demonstrates an intention to do so,
to cease working or leave the Republic because that foreigner ’s
good faith spousal relationship has ended;
3.2. require a foreigner who is a parent of a child who is a citizen or
permanent resident to leave the Republic in order to apply for a
new visa;
4
3.3. do not allow a foreigner, who is otherwise eligible for a relative ’s
visa under section 18(1), to work in South Africa where that
foreigner:
3.3.1. is the parent of a child who is a citizen or a permanent
resident; and
3.3.2. is currently fulfilling his or her responsibilities to that child,
or if he or she is not fulfilling his or her responsibilities to
that child, at least demonstrates an intention to do so as soon
as he or she is able to do so.
4. The declarations of invalidity in paragraph 1 are suspended for a period
of 24 months from the date of this order to enable Parliament to correct
the constitutional defects relating to Immigration Act identified in this
judgment and to enable the first re spondent to correct the constitutional
defects in regulation 9(9)(a) of the Regulations.
5. During the period of suspension—
5.1. section 11(6)(a) shall be deemed to read as follows:
‘(a) such visa shall only be valid while the good faith spousal
relationship exists, save that in the case of a foreigner
whose good faith spousal relationship has terminated and
who:
(i) is a parent of a child who is a citizen or permanent
resident; and
(ii) is at the time fulfilling, or demonstrates an intention
to fulfil, his or her parental responsibilities to that
child,
such visa shall be deemed to be valid, pending the outcome of an
application by the foreigner for a new visa which must be made
within three months of the end of the good faith spousal
relationship. Provided further that, if such application is made
5
after the expiry of three months, good cause is shown why it was
made after that period.’
5.2. section 18(2) of Immigration Act shall be deemed to read as
follows:
‘The holder of a relative ’s visa may not conduct work, provided
that if:
(a) the South African citizen or permanent resident is a child;
(b) the foreigner is a parent of the child; and
(c) the foreigner is currently fulfilling or demonstrates an
intention to fulfil his or her responsibilities to that child,
then the foreigner shall be allowed to work in the Republic
for the full duration of the visa.’
5.3. regulation 9(9)(a) is deemed to include a new
sub- regulation 9(9)(a)(iv) that reads as follows:
‘(iv) is the parent of a child who is a citizen or permanent
resident.’
6. Should Parliament fail to correct the constitutional defects in
Immigration Act within 24 months from the date of this judgment and
should the first respondent fail to correct the constitutional defects in the
Regulations within the 24 months from the date of this judgment, the
reading-in of the Immigration Act and the Regulations in this order shall
become final.
7. With respect to Tereza Rayment, Thierry Gondran, Richard Anderson and
Joshua Ogada, it is declared that the visas granted to them have not
expired and remain valid until their applications for a new status are
determined.
8. The respondents are to pay the applicants ’ costs in both applications
including the costs of two counsel.
6
Part B
1. The application for leave to appeal by Mr T Tembo in both capacities is
refused with costs, including the costs of two counsel, such costs to be
paid by Mr T Tembo in his personal capacity.
2. The costs in 8 above shall not include the costs relating to Mr Tembo in
his personal and representative capacities in the application arising from
WCHC Case No 3919/20.
JUDGMENT
ZONDO CJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ,
Rogers J and Theron J concurring):
Introduction
[1] These are two applications for the confirmation of a certain order of
constitutional invalidity that was made by Sher J of the Western Cape Division of the
High Court, Cape Town (High Court). In the High Court the two applications were
dealt with together.1 The High Court made one order which applied to the parties in
both applications. The first application was brought by Ms Tereza Rayment and five
others. The reference to “five others” includes where some of the applicants represent
their minor children. The first respondent is the Minister of Home Affairs (Minister).
The second respondent is the Director -General, Department of Home Affairs
(Director- General). The third respondent is the Deputy Director -General of the
Department of Home Affairs. The fourth respondent is the Department of Home Affairs
(Department). To distinguish the first application from the second, I shall refer to it as
the Rayment application or the Rayment matter.
1 Rayment v Minister of Home Affairs [2022] ZAWCHC 115; [2022] 3 All SA 918 (WCC); 2022 (5) SA 534
(WCC).
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[2] The second application was brought by Mr Richard William Anderson and three
others. Here too the reference to “three others” includes instances w here some of the
applicants represent their minor children. I shall refer to it as the Anderson application
or the Anderson matter. In the Anderson application the respondents are the same as in
the Rayment application. The applicants also appeal against certain parts of the order
of the High Court. The applicants do not need to apply for leave to appeal against those
parts of the judgment against which they seek to appeal . This is so because
section 172(2)(d) of the Constitution gives them the right to appeal.
Factual Background2
[3] In the Rayment application:
(a) the first applicant is Ms Tereza Rayment;
(b) the second applicant is Mr Thierry Antoine Gondran;
(c) the third applicant is Mr Tapiwa Tembo;
(d) the fourth applicant is Ms Tereza Rayment acting on behalf of TR and JR; who
are her minor children;
(e) the fifth applicant is Mr Thierry Antoine Gondran acting on behalf of MG and
EG who are his minor children; and
(f) the sixth applicant is Mr Tapiwa Tembo acting on behalf of KM, his son.
[4] In the Anderson application:
(a) the first applicant is Mr Richard William Anderson;
(b) the second applicant is Mr Richard William Anderson acting on behalf of CJA, his
son;
(c) the third applicant is Mr Joshua Okoth Ogada; and
2 The High Court summarised the facts of this case in its judgment. The applicants have said that that summary
is correct. The respondents have not taken issue with it. In the light of this I shall take the facts from the summary
given by the High Court but have re-arranged them for purposes of this judgment.
ZONDO CJ
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(d) the fourth applicant is Mr Joshua Okoth Ogada and Tanja Estella Bosch acting on
behalf of MWO who is their minor child.
[5] Mr Benjamin JE Güntensperger, Ms Lizette Güntensperger and Mr Benjamin
Güntensperger and Ms Lizette Güntensperger on behalf of their daughter, L G, were
applicants in the High Court, they are not applicants in this Court. They were successful
in the High Court and the respondents have not appealed against those orders.
[6] In the Rayment matter the applicants are German ( Ms Rayment), French
(Mr Gondran) and Zimbabwean ( Mr Tembo) nationals and, in the Anderson matter ,
they are British (Mr Anderson), and Kenyan (Mr Ogada) nationals.
[7] With the exception of Mr Tem bo the applicants in both matters have been
residing and working in South Africa on the basis of so called “spousal” visas which
were granted to them in terms of s ection 11(6)3 of the Immigration Act
(Immigration Act).4 These were extended from time to time. It is common cause that
the spousal visas are no longer valid. They ceased to be valid upon the termination of
the spousal relationships which existed between the applicants and their respective
spouses who are S outh African citizens. Mr Tembo’s case is dealt with separately in
this judgment.
[8] During the course of the applicants ’ relationships with their respective former
spouses the applicants had children with their spouses. Their children were born in
3 Section 11(6) of the Immigration Act 13 of 2002 (Immigration Act) reads:
“(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 au thorised 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.”
4 13 of 2002.
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9
South Africa or they acquired South African citizenship on the strength of their parent’s
citizenship. All the applicants have been living and working in S outh Africa for many
years. All of them have been dutiful and supportive parents and caregivers to their
children, sharing parental responsibilities with their partners both during their spousal
relationship and after the termination thereof. This is as far as a summary of the
circumstances which are common to all the applicants go. Below I deal with the
circumstances of the individual applicants.
Circumstances relating to individual applicants
Ms Tereza Rayment
[9] Ms Tereza Rayment is an adult woman who was born in the Czech Republic and
holds German citizenship. She met a South African man in the United Kingdom (UK)
in 2004. The following year they moved to Spain. Two sons were born o ut of their
union, in 2008 and 2010. At that time they were living in Berlin. In 2013 they came to
Cape Town with the children. Ms Rayment entered the country on a relative ’s visa in
terms of section 18(2)5 of the Immigration Act. That visa was valid for two years. It
did not allow her to work.
[10] The parties were married in the same year. In 2015 she obtained a spousal visa
which allowed her to live and to take up employment in Kommetjie in Cape Town. The
visa was renewed in 2017 and was valid until 28 November 2020. The marital
relationship broke down in 2015. Her husband moved out of the common home, leaving
her with the children. Although Ms Rayment ’s former husband still provides some
financial support for the children, this is sporadic and confined mainly to odd
contributions towards rental.
[11] Ms Rayment is the principal contributor to the children’s maintenance and pays
for their school fees and living expenses. She states that, given the length of time that
she has been out of Germany and living in South Africa, there are no realistic prospects
5 Section 18(2) of Immigration Act reads: “The holder of a relative’s visa may not conduct work.”
ZONDO CJ
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of her being able to find a job in Germany or elsewhere if she were to be forced to leave
South Africa. She has said that her estranged husband has indicated that he will not be
amenable to her taking the children out of the country with her, if she leaves. As in the
case of many of the other applicants, her children have friends and extended family in
South Africa . At the time when the applicants launched their applications in the
High Court, the children had several years of schooling left to complete.
Mr Thierry Gondran
[12] Mr Thierry Gondran is a French baker. He married a S outh African woman in
2003. Three sons were born in 2004, 2005 and 2007 out of that marriage. At that time
the family was living in France. The following year his wife returned to S outh Africa
on her own. Mr Gondran continued looking after the two elder boys in France whilst
the youngest went to live with his (paternal) grandmother, i.e. Mr Gondran’s mother.
In 2010 Mr Gondran entered South Africa on a visitor ’s visa issued in terms of
section 11(2),6 with the two elder children, to find that his wife was not working and
had become addicted to methamphetamines and alcohol.
[13] In 2014 Mr Gondran was granted a spousal visa which was valid for two years .
It allowed him to work . It was extended in September 2016 for a further three -year
period. In June 2018 he was compelled to return to France to look for work after he had
been retrenched. He had to return to S outh Africa three months later as his wife had
abandoned the children and had relocated to Johannesburg. Unable to find sustainable
employment in South Africa , he returned to France for a year, leaving the children in
the care of a friend and in November 2019 re-entered South Africa on a tourist visa. He
is currently living in Milnerton, Cape Town, with his two elder sons who are financially
dependent on him and he is solely responsible for their care and maintenance. The
youngest child continued living in France with his paternal grandmother.
6 Section 11(2) of Immigration Act reads:
“The holder of a visitor’s visa may not conduct work: Provided that the holder of a visitor’s visa
issued in terms of subsection (1)(a) or (b)(iv) may be authorised by the Director -General in the
prescribed manner and subject to the prescribed requirements and conditions to conduct work.”
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Mr Richard Anderson
[14] Mr Richard Anderson is a n adult British company executive. He met a
South African woman in 2010 while working in South Africa as a business development
manager for a UK-based company in terms of a work visa which was renewed for three
months at a time. In January 2012 he was granted a spousal visa which was valid for
three years. That spousal visa was renewed in May 2015, June 2016 and
December 2017. This allowed him to continue his employment with the company. In
2015 the parties were married and they bought a property in Blouberg Rise in
Cape Town. In 2018 they had a son. At the commencement of this litigation
Mr Anderson was the Chief Executive Officer of a South African company, iSmart
(Pty) Ltd.
[15] On 27 July 2018 Mr Anderson applied for the grant of a permanent residence
permit in terms of section 26(b) of the Immigration Act on the basis that he had been in
a spousal relationship with his wife for more than five years. Nothing came of the
application. Mr Anderson was informed by his attorney that applications for permanent
residence commonly take between three and five years to be processed and granted.
Unfortunately, some two years after submitting the application, the marital relationship
broke down and Mr Ander son was due to move out of the common home in
September 2020. As a result of this Mr Anderson is no longer eligible to be awarded
permanent residence in terms of s ection 26(b) and his spousal visa is also no longer
valid.
[16] The parties are currently embroiled in divorce proceedings. Mr Anderson ,
nonetheless, continues to play an active and important role in his son ’s upbringing and
contributes the bulk of the family ’s household income. The parties share parenting
responsibilities. Mr Anderson says, were he to be compelled to leave the country and
to return to the UK, he would struggle to find employment as he does not have any
professional or employment contacts in the UK or elsewhere. He has been working in
South Africa since 2011 and living in the country since 2013. His son has developed
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and enjoys close relationships in S outh Africa with an extended family of maternal
cousins, aunts, uncles and grandparents. Many of these individuals would not have the
means to visit them were Mr Anderson compelled to take his son with him overseas.
Mr Anderson’s wife is a committed mother and has every intention of continuing to live
and work in South Africa.
Mr Joshua Ogada
[17] Mr Joshua Ogada is a Kenyan media researcher/consultant. He met a
South African woman in 1999 in Ohio, United States of America (USA) , whilst they
were both engaged in tertiary studies. They married in Cape Town in August 2002. In
2005 a son was born out of their union in Cape Town. Mr Ogada was issued with a
spousal visa in June 2008 which was renewed in February 2011, March 2013, August
2015 and December 2018. The parties experienced marital problems in 2014 and
separated in 2016. They were divorced by an order of the Western Cape Division of
the High Court, Cape Town in August 2019.
[18] Mr Ogada and his ex-wife contribute equally to the maintenance of their son who
spends 50% of his time with him. He has a close relationship with his ex-wife and
enjoys a strong bond with his son. He, too, says that he would find difficulty in
obtaining employment in Kenya, were he to be compelled to return to Kenya. He has
been working in South Africa for some 14 years and considers South Africa his home.
He made enquiries on two occasions about applications for permanent residence in
terms of section 27(g) of the Immigration Act. However, due to the expense involved,
he did not pursue such application.
High Court
[19] The two sets of applicants instituted their respective applications in the High
Court and challenged the constitutional validity of various provisions of the
Immigration Act and some of the regulations promulgated under that Act. They sought
a declaration of invalidity which would be suspended for a specific period. They also
ZONDO CJ
13
sought a reading-in that would be operative during the period of suspension but would
become final if the competent authorities failed to correct the relevant constitutional
defects during the period of suspension. The respondents opposed these applications.
[20] The two matters were dealt with together in the High Court. They were heard
by Sher J. The High Court concluded that “[t]he effect of the legislative provisions in
issue accordingly result s in a violation of both the applicants’ constitutional rights to
dignity as well as those of their children and the children ’s constitutional and
parental rights in terms of section 28 of the Constitution and the [Children’s Act].” It
rejected the contention that there was unfair discrimination in this matter. The
High Court undertook a justifiability analysis in terms of section 36 of the Constitution.
It concluded that the respondents had not shown that the limitations were “reasonable
and justifiable in an open and democratic society based on human dignity, equality and
freedom”.7
[21] The High Court made a declaration of invalidity but the order was not competent
in that it read in the relevant parts:
“It is declared that the Immigration Act 13 of 2002 (“Immigration Act”)
alternatively sections 10(6), 11(1)(b) and 18(2) thereof, as read together
with regulations 9(5) and 9(9) . . . is/are inconsistent with the
Constitution of the Republic of South Africa, 1996 and invalid”
[22] A court cannot declare one thing alternatively another invalid. The question is:
is the first one invalid in such a case? Is the second one invalid in such a case? An
order such as the one granted by the High Court here effectively leaves both the
Immigration Act and the sections of the Immigration Act not declared invalid. It
effectively says either the Immigration Act as a whole is, or, sections 10(6), 11(b) and
18(2) thereof are , invalid. In my view , this is a fatal defect in the order. If there is
effectively or in law no order of invalidity , the reading -in that was granted by the
7 Section 36(1) of the Constitution.
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High Court can also not stand because it depends on a declaration of invalidity having
been made. This Court should not confirm such an order. Nevertheless, this Court may
make an appropriate order if it is satisfied that a declaration of invalidity and other
orders should be made.
In this Court
[23] As already indicated earlier, the applicants apply to this Court for the
confirmation of certain orders made by the High Court. It is important to also point out
that there are certain parts of the order of the High Court about which the applicants are
not happy and against which they appeal. Before I can consider the matter further, it is
necessary to set out the relevant constitutional and statutory framework.
Constitutional and statutory framework
[24] Section 1 of the Constitution provides in part:
“1. The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) human dignity, the achievement of equality and the
advancement of human rights and freedoms.”
Section 2 of the Constitution reads:
“This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled.”
[25] Section 3 of the Constitution reads in part:
“3. (1) There is a common South African citizenship.
(2) All citizens are—
(a) equally entitled to the rights, privileges and
benefits of citizenship; and
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(b) equally subject to the duties and
responsibilities of citizenship.
(3) National legislation must provide for the acquisition,
loss and restoration of citizenship.”
[26] Section 9 of the Constitution deals with equality. It reads:
“9. (1) Everyone is equal before the law and has the right to
equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all
rights and freedoms. To promote the achievement of
equality, legislative and other measures designed to
protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief , culture,
language and birth.
(4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.”
[27] Section 10 of the Constitution deals with human dignity. It reads:
“Everyone has inherent dignity and the right to have their dignity
respected and protected.”
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Section 28 of the Constitution deals with the rights of children. Insofar as it is relevant,
section 28 reads:
“Children
28. (1) Every child has the right—
. . .
(b) to family care or parental care, or to
appropriate alternative care when removed
from the family environment;
(c) to basic nutrition, shelter, basic health care
services and social services;
(d) to be protected from maltreatment, neglect, abuse or
degradation;
(2) A child’s best interests are of paramount importance in
every matter concerning the child.
(3) In this section ‘child’ means a person under the age of
18 years.”
[28] Section 29 of the Constitution deals with education . Insofar as it is relevant,
section 29 reads:
“Education
29. (1) Everyone has the right—
(a) to a basic education, including adult basic
education; and
(b) to further education, which the state, through
reasonable measures, must make
progressively available and accessible.”
[29] In interpreting the Bill of Rights, it will be important to bear section 39(1) of the
Constitution in mind. Section 39(1) reads:
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“(1) When interpreting the Bill of Rights, a court, tribunal or
forum—
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality
and freedom;
(b) must consider international law; and
(c) may consider foreign law.”
In so far as we may need to interpret the Immigration Act – which I discuss next – we
have to bear section 39(2) of the Constitution in mind. Section 39(2) reads:
“(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of
Rights.”
Immigration Act
[30] The Immigration Act makes provision for the regulation of the admission of
persons to, their residence in, and their departure from , South Africa and for matters
connected therewith. Its preamble provides in part:
“In providing for the regulation of admission of foreigners to , their
residence in, and their departure from , the Republic and for matters
connected therewith, the Immigration Act aims at setting in place a new
system of immigration control which ensures that—
. . .
(l) immigration control is performed within the highest
applicable standards of human rights protection;
. . .
(n) a human rights based culture of enforcement is
promoted;
(o) the international obligations of the Republic are
complied with; and
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(p) civil society is educated on the rights of foreigners and
refugees.”
[31] Before I deal with various provisions of the Immigration Act, it is necessary to
draw attention to the definitions of certain terms. The term “illegal foreigner” is defined
in section 1 of the Immigration Act as meaning “a foreigner who is in the Republic in
contravention of this Act”. The word “marriage” is defined in section 1 as meaning:
“(a) a marriage concluded in terms of—
(i) the Marriage Act, 1961 (Act No 25 of 1961); or
(ii) the Recognition of Customary Marriages Act, 1998
(Act No 120 of 1998);
(b) a civil union concluded in terms of the Civil Union Act, 2006
(Act No 17 of 2006); or
(c) a marriage concluded in terms of the laws of a foreign country.”
[32] The word “spouse” is defined as meaning a person who is a party to—
“(a) a marriage as defined in this Act; or
(b) a permanent homosexual or heterosexual relationship as
prescribed.”
The word “work” is said to include:
“(a) conducting any activity normally associated with the running
of a specific business; or
(b) being employed or conducting activities consistent with being
employed or consistent with the profession of the person, with
or without remuneration or reward,
within the Republic.”
[33] Section 9 of the Immigration Act reads:
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“(1) Subject to this Act, no person shall enter or depart from the Republic
at a place other than a port of entry.
(2) Subject to this Act, a citizen shall be admitted,8 provided that he or she
identifies himself or herself as such and the immigration officer
records his or her entrance.
(3) No person shall enter or depart from the Republic—
(a) unless he or she is in possession of a valid passport and in the
case of a minor, has his or her own valid passport;
(b) except at a port of entry, unless exempted in the prescribed
manner by the Minister, which exemption may be withdrawn
by the Minister;
(c) unless the entry or departure is recorded by an immigration
officer in the prescribed manner; and
(d) unless his or her relevant admission documents have been
examined in the prescribed manner and he or she has been
interviewed in the prescribed manner by an immigration
officer: Provided that, in the case of a child, such examination
and interview shall be conducted in the presence of the parent
or relative or, if the minor is not accompanied by the parent
or relative, any person of the same gender as the minor.
(4) A foreigner who is not the holder of a permanent residence permit
contemplated in section 25 may only enter the Republic as
contemplated in this section if—
(a) his or her passport is valid for a prescribed period; and
(b) issued with a valid visa as set out in this Act.”
8 In terms of section 1 of the Immigration Act, “admission” means “entering the Republic at a port of entry in
terms of section 9”.
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[34] Sections 10 to 24 deal with the topic of temporary residence in the country.
Section 10(1) provides:
“(1) Upon admission, a foreigner , who is not a holder of a
permanent residence permit, may enter and sojourn in the
Republic only if in possession of a visa issued by the
Director-General for a prescribed period.”
[35] Section 10(2) gives a list of visas that may be issued to a foreigner. Some of the
visas are a visitor’s visa as contemplated in section 11, a study visa as contemplated in
section 13 , a visa for establishing or investing in a business as contemplated in
section 15, a visa for obtaining medical treatment as contemplated in section 17, a visa
provided for in section 18 which is a relative’s visa and a work visa as contemplated in
section 19 or 21.
[36] Section 10(3) to (10) reads:
“(3) If issued outside the Republic, a visa is deemed to be of force
and effect only after an admission.
(4) A visa is to be issued on terms and condition that the holder is
not or does not become a prohibited or an undesirable person.
(5) The Director -General may for good cause attach reasonable
individual terms and conditions as may be prescribed to a visa.
(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 9 or 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.
9 “Status” is defined in section 1 of the Immigration Act as meaning “the status of a person as determined by the
relevant visa or permanent residence permit granted to a person in terms of this Act”.
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(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.
(7) Subject to this Act, the Director -General may, on application
in the prescribed manner and on the prescribed form, extend
the period for which a visa contemplated in subsection (2) was
issued.
(8) An application for a change in status does not provide a status
and does not entitle the applicant to any benefit under
Immigration Act , except for those explicitly set out in
Immigration Act , or to sojourn in the Republic pending the
decision in respect of that application.
(9) The Director -General may at any time in writing notify the
holder of a visa issued in terms of this section that, subject to
subsection (10), the visa shall be cancelled for the reasons
disclosed in the notice and that the holder is thereby ordered to
leave the Republic within a period stated in that notice, and
upon the expiration of that period the visa shall become null
and void.
(10) The holder of a visa who receives a notice contemplated in
subsection (9) may, before the expiration of the period stated
in that notice, make representations to the Director -General
which he or she shall consider before making his or her
decision.” (Emphasis added.)
[37] It is only necessary to discuss those visas that are relevant to this matter. These
will be:
(a) a visitor’s visa which is provided for in section 11;
(b) a relative’s visa as provided for in section 18; and
(c) a work visa as provided for in section 19.
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Visitor’s visa
[38] A visitor’s visa is provided for in section 11. Section 11 provides:
“(1) A visitor’s visa may be issued for any purpose other than those
provided for in sections 13 to 24, and subject to subsection (2),
by the Director-General in respect of a foreigner who complies
with section 10A and provides the financial or other guarantees
prescribed in respect of his or her departure: Provided that such
visa—
(a) may not exceed three months and upon application may be
renewed by the Director -General for a further period
which shall not exceed three months; or
(b) may be issued by the Director -General upon application
for any period which may not exceed three years to a
foreigner who has satisfied the Director-General that he or
she controls sufficient available financial resources, which
may be prescribed, and is engaged in the Republic in—
(i) an academic sabbatical;
(ii) voluntary or charitable activities;
(iii) research; or
(iv) any other prescribed activity.
(2) The holder of a visitor’s visa may not conduct work: Provided
that the holder of a visitor ’s visa issued in terms of
subsection (1)(a) or (b)(iv) may be authorised by the
Director-General in the prescribed manner and subject to the
prescribed requirements and conditions to conduct work.
. . .
(5) Special financial and other guarantees may be prescribed in
respect of the issuance of a visitor’s visa to certain prescribed
classes of foreigners.
(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—
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(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 Immigration 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.” (Emphasis added.)
[39] I pause to highlight certain features of section 11. The first is that there are two
subsections under which a visitor’s visa may be issued. The one is subsection (1). The
other is subsection (6). I would refer to the visa issued under subsection (1) as the
“visitor’s visa ” and to the one that may be issued under subsection (6) as the
“spousal visitor’s visa”. Subsection (1) provides that the Director-General may issue a
visitor’s visa for any purpose other than those provided for in sections 13 to 24 and
subject to subsection (2). That visitor’s visa may be issued to a foreigner who complies
with section 10A and provides the financial or other guarantees prescribed in respect of
his or her departure.
[40] There are two conditions attached to a visitor’s visa issued under subsection (1).
These are that such a visa may:
(a) not exceed three months and upon application may be renewed by
the Director-General for a further period which shall not exceed
three months; or
(b) be issued by the Director-General upon application for any period
which may not exceed three years to a foreigner who has satisfied
the Director -General that he or she controls sufficient available
financial resources, which may be prescribed, and is engag ed in
the Republic in—
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(i) an academic sabbatical;
(ii) voluntary or charitable activities;
(iii) research; or
(iv) any other prescribed activity.
[41] Another important feature of a visitor’s visa issued under subsection (1) is to be
found in subsection (2). Subsection 2 makes two points: first, subject to one exception,
the holder of a visitor ’s visa may not conduct work. The exception to the general rule
laid down in subsection (2) is that the holder of a visitor ’s visa issued under
subsection (1)(a) or (b)(iv) may be authorised by the Director-General in the prescribed
manner and subject to the prescribed requirements and conditions to conduct work.
This means that the Director -General may authorise the holder of a visitor ’s visa to
conduct a business or to be employed. Subsection (5) provides that special financial
and other guarantees may be prescribed in respect of the issuance of a visitor ’s visa to
certain prescribed classes of foreigners.
[42] The visitor ’s visa that is provided for in section 11(6) is only available to a
foreigner who is the spouse of a South African citizen or permanent resident , if he or
she does not qualify for any of the visas contemplated in sections 13 to 22. This means
that the spousal visitor ’s visa cannot be issued to a foreigner who qualifies for one or
other of the visas provided for in sections 13 to 22 of the Immigration Act. There are
three conditions attached to such a spousal visa. These are 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 Immigration 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.”
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[43] What this means is that, subject to one exception, a spousal visitor’s visa is valid
only while the good faith spousal relationship exists. The exception is that the
spousal visitor’s visa will fall away when the foreigner concerned is granted a
permanent residence permit for which he or she is obliged by section 11(6) (c) to apply
within three months from the date upon which he or she qualifie s to be issued with the
spousal visitor’s visa. So, if the good faith spousal relationship ends after the foreigner
has been granted permanent residence, the foreigner would not need to leave the
country. Therefore, if the permanent residence permit were to be issued to such a
foreigner within a short space of time, for example, within a month, there would be no
need for the foreigner to leave South Africa.
A relative’s visa
[44] Section 18 deals with a relative’s visa. It provides:
“(1) A relative’s visa may be issued for the prescribed period by the
Director-General to a foreigner who is a member of the
immediate family of a citizen or permanent resident, provided
that such citizen or permanent resident provides the prescribed
financial assurance.
(2) The holder of a relative ’s visa may not conduct work .”
(Emphasis added.)
A foreigner has to be a member of the immediate family of a South African citizen or
permanent resident before he or she may be issued with a relative’s visa for a prescribed
period but the South Africa citizen or permanent resident is required to provide the
prescribed financial assurance. A holder of a relative’s visa may not conduct a business
in South Africa nor may he or she be employed. Whereas in respect of a visitor’s visa,
the Director-General may authorise the holder thereof to conduct work, in the case of a
relative’s visa, the Director -General has no power to authorise the holder thereof to
conduct work.
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Work visa
[45] Section 19(2) of the Immigration Act10 confers power on the Director-General to
issue a general work visa to a foreigner who does not fall within the category of persons
who possess skills or qualifications determined to be critical for the country from time
to time by the Minister. Where a work visa is issued to a foreigner who has skills or
qualifications determined by the Minister to be critical for South Africa, work visas may
also be issued to those members of his immediate family determined by the
Director-General under the circumstances or as prescribed.
Permanent residence
[46] Section 25 governs permanent residence permits. Section 25(1) provides that
“[t]he holder of a permanent residence permit has all the rights, privileges, duties and
obligations of a citizen, save for those rights, privileges, duties and obligations which a
law or the Constitution explicitly ascribes to citizenship”. Section 25(2) provides that,
subject to the Immigration Act, upon application, one of the permanent residence
permits set out in section s 26 and 27 may be issued to a foreigner. In terms of
section 25(3) a permanent residence permit shall be issued “on condition that the holder
is not a prohibited or an undesirable person, and subject to section 28 ”. Section 28
provides for the withdrawal of a permanent residence permit under certain
circumstances. Section 25(4) provides that , for good cause, as prescribed, the
Director-General may attach reasonable individual terms and conditions to a
permanent residence permit.
[47] Section 26 governs “Direct residence”. It reads:
“Subject to section 25 and any prescribed requirements, the
Director-General may issue a permanent residence permit to a foreigner
who—
10 Section 19(2) of the Immigration Act reads:
“A general work visa may be issued by the Director -General to a foreigner not falling within a
category contemplated in subsection (4) and who complies with the prescribed requirements. ”
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(a) has been the holder of a work visa in terms of this Act for five
years and has proven to the satisfaction of the Director -General
that he or she has received an offer for permanent employment;
(b) has been the spouse of a citizen or permanent resident for five
years and the Director -General is satisfied that a good faith
spousal relationship exists: Provided that such permanent
residence permit shall lapse if at any time within two years from
the is suing of that permanent residence permit the good faith
spousal relationship no longer subsists, save for the case of death;
(c) is a child under the age of 21 of a citizen or permanent resident,
provided that such visa shall lapse if such foreigner does not
submit an application for its confirmation within two years of his
or her having turned 18 years of age; or
(d) is a child of a citizen.”
[48] It is important to point out that section 26(b) mentions two important periods in
relation to a permanent residence permit that may be issued to a foreigner. The one
period is five years. The other is two years. A foreigner must have been a spouse to a
South African citizen for five years before the Director -General may issue a
permanent residence permit to him or her and provided the other requirements are met.
In other words, if a foreigner has been a spouse to a South African citizen or
permanent resident for less than five years, he or she may not be issued a
permanent residence permit in terms of section 26. The period of two years referred to
in section 26 is the two years following the issuing of a permanent residence permit
under section 26(b). That period is the only period within which the foreigner ’s
permanent residence permit expires if the good faith relationship is terminated. In other
words, if the good faith spousal relationship is terminated after the expiry of the
two- year period, the permanent residence permit does not expire.
[49] Section 27 deals with the grant of a residence permit on grounds other than those
dealt with in preceding sections. Section 27(g) reads:
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“The Director -General may, subject to any prescribed requirements,
issue a permanent residence permit to a foreigner of good and sound
character who—
. . .
(g) is the relative of a citizen or permanent resident within the first
step of kinship.”
[50] Section 28 governs the withdrawal of a permanent residence permit. It provides
that the Director -General may withdraw a permanent residence permit on certain
grounds which are set out in the section. Nothing really turns on section 28. Section 32
reads:
“(1) Any illegal foreigner shall depart, unless authorised by the
Director-General in the prescribed manner to remain in the
Republic pending his or her application for a status.
(2) Any illegal foreigner shall be deported.” (Emphasis added.)
The problem
[51] The problem common to both sets of applicants in these two matters was that ,
where a foreign national is married to or is in a good faith spousal relationship with a
South African citizen or permanent resident and has been issued with a spousal visa
which allows him or her to reside and work in South Africa , the spousal visa expires
when the marriage or good faith life partnership ends . When the foreign spousal visa
expires, the foreign national is required to leave South Africa immediately. His or her
continued stay in South Africa becomes illegal.
[52] In terms of the Immigration Act it is a condition of the grant of a spousal visa
that the person to whom it is granted must live together with the other person to the
good faith spousal relationship or marriage. If he or she does not live with such a
person, he or she is in breach of the conditions of the spousal visa. If he or she has a
job in South A frica a t the time of the termination of the marriage or the good faith
spousal relationship, he or she is not allowed to continue working in South Africa. He
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or she is required to leave South Africa and he or she commits a criminal offen ce each
day he or she remains in South Africa.
[53] If the foreign national needed to work in South Africa in order to survive, he or
she suddenly will have no means of earning his or her livelihood once he or she is not
allowed to work. If there is a child born out of the marriage or the good faith spousal
relationship between the foreign national and the South African citizen or
permanent resident, that child will be adversely affected by the fact that the
foreign national – who may be his or her father or mother – is not allowed to work once
the spousal visa has expired. This is because the father or mother of the child who is a
foreign national may not be able to provide for the child in terms of accommodation,
food, clothing and to pay medical bills and school fees relating to his or her child.11
[54] If the other parent – that is the one who is a South African citizen or
permanent resident – does not work or is otherwise not able to earn an income to provide
for the child, the position will be that only one instead of both of his or her parents will
be able to provide for the chid. If, however, the parent who is a South African citizen
or permanent resident is unemployed and d oes not earn income in any other way, the
effect of the South African legal regime will be that neither parent is able to provide for
the child. In other words, the effect of the South African legal regime is that, even when
the parent who is a South African citizen or permanent resident is unemployed and the
only parent who has a job is the foreign national, one of the consequences of the expiry
of the spousal visa is that the only parent who has a job is then prohibited from working
11 Section 18 of the Children’s Act 38 of 2005 (Children’s Act) has a list of parental rights and responsibilities
and the relevant portions are listed in subsections (1) and (2) which state:
“(1) A person may have either full or specific parental responsibilities and rights in respect
of a child.
(2) The parental responsibilities and rights that a person may have in respect of a child,
include the responsibility and the right-
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.”
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and is required to leave the country. That requirement may separate members of a
family. It may separate a parent from his or her child . It may separate a spouse or
partner from his or her spouse or partner.
[55] The result is that the child is placed in a position where both his or her parents
have no job and can, thus, not provide for him or her. When the child has only one
parent who works or who is able to earn income as opposed to two, depending on the
size of the salary or income of that parent, the result may be that this family is no longer
able to continue to enjoy the lifestyle that they were used to when both parents were
working or earning an income. This may include that , in due course , the family may
lose their home or the parents may no longer be able to afford to pay school fees for
their child or children. The parents may no longer even have money to pay for adequate
food for the family including the child.
[56] If the parent who is a foreign national still wants to continue living in
South Africa, he or she is required to apply for another visa from outside South Africa.
He or she is not allowed to apply for another visa while within South Africa . If he or
she leaves South Africa so as to apply for another visa or permit to enter the country, he
or she is not allowed to return to South Africa until his or her application for another
visa or permit is granted. Obviously, if it is refused, he or she would not be permitted
to re -enter the country. If it is granted, he or she would be allowed to re -enter the
country but it may be after a long separation from his or her spouse or partner or child.
[57] These consequences and effects of the expiry of a spousal visa apply irrespective
of how long the marriage or good faith spousal relationship has lasted and irrespective
of how small the children of the couple are. In other words, these consequences can
come about when the couple have a baby who is a few months old, and can also happen
when the child of the couple is of school-going age or is attending university. It can
happen when the marriage or good faith spousal relationship is a few months old or at
a time when the marriage or good faith spousal relationship has been going on for a few
years or when it has been going on for 10 or 20 years etc.
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[58] Once the marriage or good faith spousal relationship had ended, and because the
law does not allow the foreign national to work, this could mean that, if the couple had
a mortgage bond during their marriage or good faith spousal relationship in respect of
which they made joint monthly payments, the South African citizen or
permanent resident might lose property when he or she cannot afford the monthly
payments because the foreign national can no longer contribute to the mortgage bond
payments.
[59] There can be no doubt that the provision in the Immigration Act that precludes
from working or conducting a business a foreign national whose spousal visitor ’s visa
has expired because the spousal relationship has ended quite clearly limits not only the
child’s right to human dignity but also the right to human dignity of the parents. Indeed
this provision also constitutes a limitation of the foreign national ’s right to human
dignity. A law that precludes or makes it a criminal offence for anyone to do any work
or conduct any business limits such person ’s right to human dignity . The indignity is
made worse when such foreign national has a child or anyone lawfully dependent upon
him or her to maintain and support. Then there is the provision in the Immigration Act
that requires the foreign national whose spousal visitor ’s visa has expired to leave
South Africa and apply for a change of status from outside the country.
Dawood
[60] Dawood12 is one of the important judgments of this Court that require
consideration in this matter. In Dawood the position was that:
(a) section 25(9) of the Aliens Control Act,13 read in the context of section 23
of that Act , provided that a regional committee of the
Immigration Selection Board — the agency empowered to grant
12 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (Dawood).
13 96 of 1991. The Aliens Control Act was repealed by the Immigration Act, which came into force on
12 March 2003.
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immigration permits — could grant immigration permits (which would
permit a foreigner to reside in South Africa permanently when the
applicant for such permit was not in South Africa);
(b) section 25(9)(a) created an exception to the general rule in (a) above in
terms of which an applicant for an immigration permit who possessed a
valid work permit did not need to be outside of South Africa when the
immigration permit was granted; and
(c) section 25(9)(b) created a further exception in terms of which spouses,
dependent children and aged, infirm or destitute family members who
were in possession of a valid temporary residence permit issued in terms
of section 26 also did not need to be o utside South Africa at the time the
immigration permit was granted.
[61] It is against the above background that O ’Regan J, who wrote for a
unanimous Court, framed the second issue in Dawood as:
“[W]hether it was constitutional for the [Aliens Control] Act to require
that an immigration permit could be granted to a spouse of a South
African citizen who was in South Africa at the time only if that spouse
was in possession of a valid temporary residence permit”.14
This meant that the foreign spouse of a South African citizen had to leave the country
and apply for an immigration permit from outside the country if he or she did not hold
a valid temporary residence permit. To do that he or she would have to choose whether
he or she would leave S outh Africa alone and leave his or her spouse and children
behind in South Africa or whether he or she would take his or her spouse and children
with him or her out of the country and come back with them when he or she had been
granted the immigration permit.
14 Dawood above n 12 at para 3.
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[62] This Court pointed out that our Constitution did not contain any express
provision that protects the right to family life or the right to cohabit. 15 However, it
pointed out that the new constitutional text met the obligations imposed by
international human rights law to protect the rights of persons freely to marry and to
raise a family.16 It referred in this regard to Article 16 of the Universal Declaration of
Human Rights 17 (UDHR), Article 23 of the International Covenant on Civil and
Political Rights 18 (ICCPR) and Article 18 of the African Charter on Human and
Peoples’ Rights19 (ACHPR), all of which South Africa had ratified already at that
time.20
[63] South Africa has ratified various Conventions which , within the context of
children, emphasise the need for states to protect family life . These include the
Convention on the Rights of the Child21 (CRC), African Charter on the Rights and
Welfare of the Child22 (ACRWC) and the International Covenant on Economic, Social
and Cultural Rights23 (ICESCR).
[64] Article 18 of the CRC places an obligation on South Africa to protect family life.
It states:
15 Id at para 28.
16 Id.
17 Universal Declaration of Human Rights, 1948, (ratified by South Africa on 10 October 1996) (UDHR).
18 International Covenant on Civil and Political Rights , 1966, (ratified by South Africa on 10 December 1998)
(ICCPR).
19 African Charter on Human and Peoples’ Rights, 1986, (ratified by South Africa on 6 June 1994) (CRC).
20 Dawood above n 12 at para 29.
21 United Nations Convention on the Rights of the Child, 1991, (ratified by South Africa on 16 June 1995)
(UNCRC).
22 African Charter on the Rights and Welfare of the Child, 1999, (ratified by South Africa on 21 January 2000)
(ACRWC).
23 International Covenant on Economic, Social and Cultural Rights, 1976, (ratified by South Africa on 12 January
2015) (ICESCR).
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“States Parties shall use their best efforts to ensure recognition of the
principle that both parents have common responsibilities for the
upbringing and development of the child. Parents or, as the case may
be, legal guardians, have the primary responsibility for the upbringing
and development of the child. The best interests of the child will be
their basic concern.”
[65] The above provision states that both parents, not one parent or the parent that is
South African have the primary responsibility for the upbringing and development of
the child. The best interests of their child must be their basic concern. Closer to home,
the ACRWC takes a step further by containing a provision which specifically deals with
children upon the dissolution of a marriage. Article 18 of the ACRWC states:
“(1) The family shall be the natural unit and basis of society. It shall
enjoy the protection and support of the State for its
establishment and development.
(2) States Parties to the present Charter shall take appropriate steps
to ensure equality of rights and responsibilities of spouses with
regard to children during marriage and in the event of its
dissolution. In case of the dissolution, provision shall be made
for the necessary protection of the child.
(3) No child shall be deprived of maintenance by reference to the
parents’ marital status.”
[66] Article 19(1) of the ACRWC provides:
“Every child shall be entitled to the enjoyment of parental care and
protection and shall, whenever possible, have the right to reside with
his or her parents. No child shall be separated from his parents against
his will, except when a judicial authority determines in accordance with
the appropriate law, that such separation is in the best interest of the
child.”
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[67] In S v M24 the Court held:
“Every child has his or her own dignity. If a child is to be
constitutionally imagined as an individual with a distinctive
personality, and not merely as a miniature adult waiting to reach full
size, he or she cannot be treated as a mere extension of his or her
parents, umbilically destined to sink or swim with them. The unusually
comprehensive and emancipatory character of section 28 presupposes
that in our new dispensation the sins and traumas of fathers and mothers
should not be visited on their children.”25
[68] Article 10(1) of the ICESCR provides:
“The States Parties to the present Covenant recognise that:
(1) The widest possible protection and assistance should be
accorded to the family, which is the natural and fundamental
group unit of society, particularly for its establishment and
while it is responsible for the care and education of dependent
children.”
[69] O’Regan J said in Dawood:
“[35] In many cases, however, where the value of human dignity is
offended, the primary constitutional breach occasioned may be
of a specific right such as the right to bodily integrity, the right
to equality or the right not to be subjected to slavery, servitude
or forced labour.
[36] In this case, however, it cannot be said that there is a more
specific right that protects individuals who wish to enter into
and sustain permanent intimate relationships than the right to
dignity in section 10. There is no specific provision protecting
family life as there is in other constitutions and in many
24 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC); 2007 (2) SA CR 539 (CC).
25 Id at para 18.
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international human rights instruments. The applicants argued
that legislation interfering with the right to enter into such
relationships infringed the rights to freedom of movement and
the rights of citizens to reside in South Africa. It may well be
that such legislation will have an incidental and limiting effect
on these rights, but the primary right implicated is, in my view,
the right to dignity. As it is the primary right concerned, it is
the right upon which we should focus.”26 (Emphasis added.)
[70] This Court also had this to say:
“[37] The decision to enter into a marriage relationship and to sustain
such a relationship is a matter of defining significance for
many, if most, people and to prohibit the establishment of such
a relationship impairs the ability of the individual to achi eve
personal fulfilment in an aspect of life that is of central
significance. In my view, such legislation would clearly
constitute an infringement to dignity. It is not only legislation
that prohibits the right to form a marriage relationship that will
constitute an infringement of the right to dignity, but any
legislation that significantly impairs the ability of spouses to
honour their obligations to one another would also limit that
right. A central aspect of marriage is cohabitation, the right
(and duty) to live together, and legislation that significantly
impairs the ability of spouses to honour that obligation would
also constitute a limitation of the right to dignity. ”27
(Emphasis added.)
[71] The Court held that the statutory provision which sought to force the foreign
spouse to choose between going abroad with his or her partner while the application
was considered and remaining in South Africa alone limited the right of cohabitation of
spouses. The Court also said in Dawood:
26 Id at para 36.
27 Id at para 37.
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“[39] The right (and duty) to cohabit, a key aspect of the marriage
relationship, is restricted in this way. Accordingly, the right to
dignity of spouses is limited by statutory provisions that
empower immigration officers and the Director -General to
refuse or to grant or extend a temporary permit. Having regard
to the general prohibition against remaining in South Africa
pending the outcome of an application for an immigration
permit, the power to refuse the temporary permit is, in effect, to
limit the right of cohabitation of spouses. It is necessary now
to consider whether that limitation is justifiable or not.”28
[72] The Court also stated:
“[43] But temporary permits can also be refused. This is clear from
the formulation of section 25(9)(b) read with sections 26(3) and
(6). If the Legislature had intended permits always to be
granted, it would have said so. The requirement in
section 25(9)(b) that a foreign spouse be in possession of a
valid temporary permit therefore necessarily implies that there
are other considerations that must or may be taken into account,
and that would be relevant particularly to the refusal of a
temporary permit. Yet these considerations are not identified
at all. As sections 26(3) and (6) stand there is nothing to
indicate what factors or circumstances can or ought to be taken
into consideration by the relevan t immigration officials and
the DG.
[44] …However, section 25(5) of the [Immigration] Act states that
a regional committee, notwithstanding the provisions of
section 25(4), may issue an immigration permit to a spouse of
a permanent and lawful resident of South Africa. Section 25(5)
does not substitute any other criteria for those provided by
section 25(4)(a). There is therefore no guidance to be found in
either of these p rovisions as to the circumstances in which
28 Id at para 39.
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immigration officials or the DG may refuse to issue or extend a
temporary residence permit.”29 (Emphasis in the original.)
[73] The Court also pointed out:
“[51] The exact nature and effect of the deprivation of rights will
depend on the circumstances of each case in which the grant
or extension of a temporary residence permit is refused. The
result of such a refusal will be that the foreign spouse will be
required to leave South Africa pending the decision of the
Regional Board on his or her application for an immigration
permit. Even if the South African spouse is able to accompany
his or her spouse to the foreign state, the limitation of the rights
of the South African spouse is significant. It is aggravated by
the fact that applicants do not know when their applications
for immigration permits will be considered by the relevant
regional committee. The limitation is even more substantial
where the refusal of the permit results in the spouses being
separated. Enforced separation places strain on any
relationship. That strain may be particularly grave where
spouses are indigent and not in a position to afford
international travel, or where there are children born of the
marriage. Indeed, it may well be that the enforced separation
of the couple could destroy the marriage relationship
altogether. Although these provisions do not deprive spouses
entirely of the rights to marry and form a family, they
nevertheless constitute a significant limitation of the right.”30
[74] In Dawood, this Court concluded that section 25(9)(b) read with
sections 26(3) and (6) was inconsistent with the Constitution and, therefore, invalid
because of the absence of a legislative guidance identifying the circumstances in which
a refusal to grant or extend a temporary permit would be justifiable and that , therefore,
29 Id at paras 43-4.
30 Id at para 51.
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those provisions constituted an infringement of the applicants ’ constitutional right to
dignity which protects their right to marry and cohabit. The inconsistency with the
Constitution, therefore, lay in a legislative omission, the failure to provide guidance to
the decision-maker.31
Nandutu
[75] In Nandutu32 two married couples were involved. Each couple comprised a
South African citizen or permanent resident and a foreign national. At least one of the
two couples had a child born of their relationship. The foreign spouses had entered
South Africa legally on the strength of visitors ’ visas. They applied for spousal visas
in terms of section 11(6) of the Immigration Act which would have given them the right
to live in South Africa as long as their marriages or life partnership s were operational
and they complied with the terms and conditions of the spousal visa s. The
Director- General of the Department of Home Affairs rejected the applications for
spousal visas.
[76] The reason advanced by the Director-General for rejecting their applications was
that in terms of section 10(6) of the Immigration Act the applicants – being holders of
visitor’s visas – could not apply to change their visa status from within the country.
This meant that they were required to leave South Africa and make their applications
for spousal visas from outside the country. Section 10(6)(a) of the Immigration Act
provided that a foreigner other than one who was the holder of a visitor’s visa or medical
treatment visa could apply to the Director -General to change his or her status while in
the country. Section 10(6)(b) then dealt with holders of visitors ’ visas and medical
treatment visas.
[77] Section 10(6)(b) provided that foreigners who were holders of visitors ’ visas or
medical treatment visas were not to make their applications for a change of status from
31 Dawood above n 12 at para 61.
32 Nandutu v Minister of Home Affairs [2019] ZACC 24; 2019 (5) SA 325 (CC); 2019 (8) BCLR 938 (CC).
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within the country “except in exceptional circumstances as prescribed. ” The term
“as prescribed” meant as prescribed by regulations. Regulation 9(9)(a) dealt with the
exceptional circumstances contemplated in section 10(6)(b). Regulation 9(9)(a) read:
“The exceptional circumstances contemplated in s ection 10(6)(b) of
Immigration 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.”
[78] The Nandutu case related to the question that, while section 10(6)(b) of
Immigration Act envisaged that, in exceptional circumstances as prescribed, holders of
visitor’s visas could make applications for a change of status from within the country,
regulation 9(9)(a) failed, in setting out the exceptional circumstances contemplated in
section 10(6)(b), to include the circumstances applicable to foreign holders of visitor ’s
visas who were spouses or life partners of South African citizens.
[79] In Nandutu Mhlantla J, writing for a unanimous Court, said:
“[50] It is clear from the above provisions that there has been a
departure from the 2002 framework. While section 10(6) –
which appears to be a Dawood-based inclusion – allows a
certain category of foreigners to change their visa status from
within the country, regulation 9(9)(a) does not provide foreign
spouses and children with this option. While there are
exceptions, it appears that the Legislature may have taken one
step forward and two steps back.
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[51] The issue raised in this matter arises from reading
section 10(6)(b) and regulation 9(9)(a) together, in that there
is no exceptional circumstance listed under regulation 9(9)(a)
that covers a foreign spouse or child of a South African citizen
or permanent resident. Accordingly, persons falling into that
category who are holders of a visitor’s visa do not receive the
benefit under section 10(6)(b) to apply for a change of status
or terms and conditions attached to that visa from within
South Africa. Before considering whether this constitutes a
limitation of either the right to dignity or the best interests of
the child and, if it does, the nature of the limitation, it is
important to first consider whether a change from a
section 11(1) visitor ’s visa to a s ection 11(6) spousal visa
actually constitutes a change of visa status. It is only if this is
answered in the affirmative that the applicability of
section 10(6)(b) arises and the constitutional validity of
regulation 9(9)(a) is called into question.”33
[80] This Court went on to say in Nandutu:
“[57] The scheme of section 10(6)(b) read with regulation 9(9)(a) is
that persons who enter the country on a visitor ’s visa cannot
apply for a change of visa status while inside the country
regardless of becoming spouses of South African citizens or
permanent residents. The Immigration Act requires them to
make that application while they are out of the country. This
is the position even where the visitor’s visa is still valid.”34
[81] The fact that a foreign spouse or life partner of a South African citizen who was
in the country on a visitor ’s visa would need to leave South Africa and apply for a
change of visa status from outside the country meant that he or she might have to leave
South Africa alone and stay outside South Africa for possibly many months pending
33 Id at paras 50-1.
34 Id at para 57.
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the outcome of his or her application for a change of status. If the South African spouse
remained in the country during that period, this would mean that the married couple or
the two life partners would not be cohabiting and would be forced to live apart. It would
mean that this law temporarily tore the family apart for months on end. If the family
did not want to be apart for such a long period, then the South African spouse and the
South African child, if the couple had such a child, would have to le ave South Africa
together with the foreign national and live outside South Africa for months on end
pending the outcome of the application for a change of visa status. This would be
compelling the spouse who is a South African citizen and the child to move out of the
country against their will. This limits their rights as South African citizens in terms of
section 21(3) of the Constitution “to remain in the Republic.”
[82] In Nandutu this Court went on to say:
“[59] As the relevant provisions of the Aliens Control Act did in
Dawood, here section 10(6)(b) of the Immigration Act read with
regulation 9(9)(a) imposes a limitation on the right to dignity.
This occurs when families are forced to live apart whilst waiting
for a decision on the application for a change of visa status.
Section 10(6)(b) singles out holders of a visitor ’s or medical
treatment visa and obliges them, regardless of a change of their
status or circumstances, to make their application while they are
out of South Africa. This limitation strikes at the core of marital
rights and their reciprocal obligations. I t interferes with the
fulfilment of cohabitation, a central feature of marriage. And as
observed in Dawood, this impairment of familial rights
constitutes a limitation of the right to dignity.
[60] In my view, Dawood thus makes it clear that there is a limitation
of the right to dignity in this instance. That limitation extends
to the right to dignity of the South African citizen or permanent
resident who is forced to be separated from their spouse, in
addition to the foreign spouse. Further, given that the right to
dignity is extended to include the right to family life, it is clear
that the rights of children protected by section 28(1)(b) and (2)
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are limited, in that where a parent is required to leave the
Republic in order to apply for a change of visa status, this may
result in the child ’s family being separated. Section 28(2) of
our Constitution provides that a child ’s best interests are of
paramount importance in every matter concerning the child.
Although the words ‘paramount importance ’ appear in
section 28(2), our jurisprudence holds that they do not
automatically override other rights as every right is itself
capable of being limited. In De Reuck v Director of
Public Prosecutions, this Court made it clear that the word
‘paramount’ in section 28(2) does not automatically mean that
a child’s best interests can never be limited by other rights, and
that therefore, in certain instances, section 28(2) may be
subjected to limitations that are reasonable and justifiable in
terms of section 36.”35
[83] It is clear from the above paragraphs that in Nandutu this Court concluded that
section 10(6)(b) of the Aliens Control Act read with regulation 9(9)(a) constituted a
limitation on the right to dignity of not only the foreign national spouse or life partner
but also that of the South African citizen and the child. The Court rejected the
contentions that section 31(2)(c) of the Act prevented a limitation of the right to human
dignity because it empowered the Minister to waive procedural requirements. In
Nandutu this Court conducted the justifiability analysis provided for in section 36 of
the Constitution and concluded that the limitation was not reasonable and justifiable in
a democratic society based on human dignity, equality and freedom.
Other relevant authorities
[84] This Court’s decision in Booysen36 came after Dawood. It raised essentially the
same issues as were raised by Dawood. Accordingly, it was decided on the basis of
Dawood. In that case a foreign national who was a spouse of a South African citizen
35 Id at paras 59-60.
36 Booysen v Minister of Home Affairs [2001] ZACC 20; 2001 (4) SA 485 (CC); 2001 (7) BCLR 645 (CC).
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and wanted to apply for her work permit was required to apply from outside of
South Africa and not to enter the country until the work permit had been issued. This
was required by section 26(2)(a) of the Aliens Control Act. The reasons given in
Dawood for the conclusion that the statutory provisions therein unjustifiably limited the
right to dignity and other fundamental rights mentioned in that judgment appl ied with
equal force in the Booysen case.
[85] In Dladla37 the applicants, who were some of the beneficiaries of this Court ’s
judgment in Blue Moonlight ,38 lived, together with others, in an accommodation
provided to them by a certain entity at the instance of the City of Johannesburg. That
accommodation had certain rules including a rule that was called the lockout rule and
the family separation rule. The family separation rule prevented ma les and females,
including married couples, from living together in that accommodation. The lockout
rule prevented the people who lived in that accommodation from being in the
accommodation during the day with the result that, if they were not working, they had
to find a way of how and where to spend their time and were only allowed back into the
accommodation at a certain time in the evening.
[86] Dealing with these rules, the Court had this to say in Dladla:
“[47] The temporary accommodation given by the City implicates the
rights to dignity, freedom and security of the person, and
privacy. The applicants are thus entitled to the protection of
their constitutional rights in sections 10, 12 and 14. Again, the
fact that Blue Moonlight called for temporary accommodation
only does not mean the applicants are not entitled to the full
protection of their constitutional rights. They flow from this
Court’s order. I will show below that the Shelter did not give
37 Dladla v City of Johannesburg [2017] ZACC 42; 2018 (2) SA 327 (CC); 2018 (2) BCLR 119 (CC).
38 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 ( Pty) L imited (CC)
[2011] ZACC 33; 2012 (2); 2012 (2) SA 104 (CC); BCLR 150 (CC).
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effect to the applicants’ rights to dignity, freedom and security
of the person, and privacy.
[48] The lockout and family separation rules limit the applicants ’
right to dignity. The lockout rule limits the right to dignity
because it is cruel, condescending and degrading. It forces the
applicants out onto the streets during the day with no place
whatsoever to call their own and to rest. As a result, people seek
refuge on the street while they wait for the Shelter to re -open.
The lockout rule also disproportionately affects people who
work the night shift and sleep during the day. They have
nowhere to rest and get ready for the next shift. For them in
particular the Shelter is no shelter at all. The lockout rule also
treats people like children. It undercuts the ability of the
applicants to make plans and to make use of their time as they
see fit. Clearly, the implication is that the applicants cannot
manage their own affairs and have to be shepherded to and fro.”
[87] As is reflected above , the family separation rule limited the right to human
dignity and the freedom of movement and the limitation was not reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom, taking into account the matters listed in section 36.
[88] In Dladla this Court reaffirmed that the right to dignity encompasses the right to
family life and declared unconstitutional a policy that separated male and female
evictees in state accommodation. 39 Plainly, the concept of a family encompasses a
spousal relationship that obviously extends to a parental relationship, perhaps more so
given the vulnerability of the children involved and the lack of choice within the
relationship. Even a short separati on as currently mandated under sections 10(6) and
32 of the Immigration Act must thus be seen as an interference with the right to family
life as part of the right to dignity and a limitation on that right.
39 Dladla above n 37 at paras 49 and 54.
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[89] In Pridwin40 the parents of a certain child, namely, AB, had concluded an
agreement with Pridwin School which regulated the admission to , and, attendance at,
the school. Owing to the child’s father ’s alleged unacceptable conduct , the school
terminated the agreement without affording the child or his or her parents the
opportunity to be heard. The main, if not the sole, question was whether the failure of
the school to afford the child or his or her parents the opportunity to be heard offended
the child’s right to basic education and the paramountcy of a child ’s best interests. 41
Through Theron J, who wrote the majority judgment, this Court said:
“[141] This Court has held that section 28(2) incorporates a procedural
component, affording a right to be heard where the interests of
children are at stake. This was made clear in C, where this Court
dealt with statutory provisions which permitted a child to be
removed from his or her parents ’ care, but did not afford any
automatic opportunity to make representations. The concurring
judgment of Skweyiya J held that this was impermissible,
because section 28(2) required that the family and the child
concerned be afforded an opportunity to make representations:
‘Section 28(2) of the Constitution requires an
appropriate degree of consideration of the best
interests of the child. Removal of a child from family
care, therefore, requires adequate consideration. As a
minimum, the family, and particularly the child
concerned, must be given an opportunity to make
representations on whether removal is in the child ’s
best interests.’”
This Court held in Pridwin that the school was obliged to afford the child the
opportunity to be heard before it could cancel the agreement between itself and the
parents of the child.
40 AB v Pridwin Preparatory School [2020] ZACC 1; 2020 (5) SA 327 (CC); 2020 (9) BCLR 1029 (CC).
41 Id at para 4.
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[90] In S v M Sachs J concluded that the regional magistrate passed sentence without
giving sufficient independent and informed attention as required by section 28(2) read
with section 28(1)(b) of the Constitution to the impact on the children of sending M to
prison. Sachs J continued:
“This failure carried through into the approach adopted by the
High Court. Though the High Court was not unsympathetic to the
plight of M and her children, and noted that imprisonment would be
hard both for her and the children, it should have gone further and itself
made the enquiries and weighed the information gained. In these
circumstances the sentencing Courts misdirected themselves by not
paying sufficient attention to constitutional requirements. This Court is
therefore entitled to reconsider the appropriateness of the sentence
imposed by the High Court.”42
Constitutionality of section 10(6)(b) of Immigration Act
[91] Section 10(6)(b) of the Immigration Act reads:
“An application for change of status attached to a visitor’s visa shall not
be made by the visa holder while in the Republic, except in exceptional
circumstances as prescribed.”
[92] In Nandutu regulation 9(9)(a) of the Regulations under the Immigration Act
contained the exceptional circumstances contemplated in section 10(6)(b) but those
circumstances did not include the situation of the applicants in Nandutu. This Court
held that regulation 9(9)(a) of the Immigration Regulations was inconsistent with
the Constitution and, therefore, invalid because, in purporting to provide the exceptional
circumstances contemplated in section 10(6)(b) of the Immigration Act, the regulation
did not include the case of the spouse or child of a South African citizen to change the
status while in the Republic. To remedy the situation in the interim, this Court read in
42 S v M above n 24 at para 48.
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another exception, numbered (iii), into regulation 9(9)(a), namely, is the spouse or child
of a South African citizen or permanent resident”.
[93] Counsel for the applicants submitted that unfortunately Nandutu did not extend
to a foreign person who is the parent of a South African child but no longer a spouse of
a South African adult. He submitted that this was the dilemma faced by the applicants.
In my view an applicant who is a foreign national whose permanent spousal relationship
with a South African citizen or permanent resident has ended, but who has a child with
such South African citizen or permanent resident where the child is a South Afric an
citizen, is entitled to relief. This is so because section 10(6)(b), in so far as it does not
recognise his or her situation as an exceptional circumstance, limits his right to dignity
and the limitation is neither reasonable nor justifiable under section 36(1) o f the
Constitution, just as it was found in Nandutu. Indeed, it also limits the child ’s right to
dignity.
[94] Furthermore, the provision also offends section s 28(1)(b) and 28(2) of the
Constitution which are children’s rights. As to how this situation should be addressed
in the order, counsel for the applicants submitted that the word “parent” should simply
be read into the reading -in that was made by this Court to regulation 9(9)(a)(iii) in
Nandutu. The agreed position between the parties is that , regulation 9(9)(a) should
simply be amended by the insertion of a new sub -regulation 9(9)(a)(iv) that reads as
follows:
“(iv) is the parent of a citizen or permanent resident child”
Constitutionality of section 18(2) of the Immigration Act
[95] I quoted section 18(1) and (2) earlier. Subsection (1) confers on the
Director-General the power to issue a relative’s visa to a foreigner who is a member of
the immediate family of a citizen or permanent resident of South Africa provided that
such citizen or permanent resident provides the prescribed financial assurance.
Subsection (2) reads:
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“The holder of a relative’s visa may not conduct work.”
[96] Where the foreigner is a parent of a child who is a South African citizen or
permanent resident, section 18(2) limits the right to human dignity of both the child and
the parent who is a foreign national. It also limits the right to family life as dealt with
both in Dawood and in Nandutu, given the family nature of the relationship between
the foreign national and his or her South African child. Indeed, this statutory provision
limits the child’s rights entrenched in section 28(1)(b) and (2) of the Constitution. This
is so because it may compel a foreign national to remove his or her child from
South Africa against the child’s will because the parent would need to go to a country
where he or she would be allowed to live with his or her child and work – thereby also
limiting the child’s citizenship right to remain in South Africa.
[97] I, therefore, emphasise that, in requiring the foreign national to leave the country,
the provisions of the Immigration Act may separate a parent from his or her child and
may prevent such a foreign national from living with his or her child. The provisions
thus also limit the child ’s right to human dignity: Indeed, both provisions of the
Immigration Act – sections 10(6)(b) and 18(2) – require a foreign national whose
spousal visitor ’s visa has expired to leave the Republic and the provision which
prohibits such a foreign national from working or conducting a business also limits the
rights of the child protected by section 28(1)(b) and (2) of the Constitution as was also
held to be the case by this Court in Nandutu.43 There may be other rights entrenched in
the Bill of Rights that are also limited by the Immigration Act. However, it is not
necessary to deal with them all at the same time.
[98] To sum up, the statutory requirement that a foreign national must leave
South Africa in order to apply from outside to change his or her visa status limits:
43 Id at para 60.
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(a) his or her right to dignity;
(b) the right to human dignity of the spouse or partner who is a South African
citizen or a permanent resident;
(c) the child’s right to human dignity if the couple have a child;
(d) the child’s section 21(3) right as a citizen; and
(e) the child’s right under section 28(2) of the Constitution.
Section 36 analysis
[99] Having concluded that the Immigration Act limits the rights referred to above,
the next question is whether such limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors inc luding those listed in section 36(1). Only a law of general
application may limit a right entrenched in the Bill of Rights. The Immigration Act is
a law of general application. The factors listed in section 36(1) are the following:
“(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”44
Nature of the right
[100] The rights that the Immigration Act limits are very important. The one is the
right to human dignity. In this context the right to human dignity includes the right to
family life.
[101] Another one is the right not to be unfairly discriminated against which is
entrenched in section 9 of the Constitution. Yet another one is the right of every child
44 Section 36(1) of the Constitution.
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to have his or her best interests considered in every matter that affects a child. The
factors relevant to the consideration of the best interests of the child are enumerated in
section 7 of the Children’s Act. This includes these parental rights and responsibilities:
(a) caring for and protecting children;
(b) keeping contact;
(c) acting as a guardian; and
(d) making financial contributions to the child’s maintenance.
[102] The Immigration Act also limits the right of the child to the parental care of his
or her parents or of the parent who is a foreign national who is required to leave the
country and apply for a change of status from outside of the Republic. In terms of
section 15(2) of the Maintenance Act,45 the duty to support a child is that of both parents.
The section confirms the common law position which is that the support includes that
which a child reasonably requires for his or her proper living and upbringing, which
includes the provision of food, clothing, accommodation, medical care and education.46
[103] South Africa’s international obligations emphasise that the primary
responsibility for the protection, upbringing and development of the child rests with the
family. Certain familial rights have found definition in human rights law, including the
right to (respect for) family life; the right to found a family; the right to family care; and
the right not to be arbitrarily separated from the family.47
Importance of the purpose of the limitation
[104] With regard to the importance of the purpose of the limitation, the respondents
have not explained what legitimate purpose is served by these provisions of the
Immigration Act that require the foreign parent of a child which is a citizen of the
45 99 of 1998.
46 Spiro The Law of Parent and Child in South Africa (1985) at 397.
47 Article 9 of the CRC; Articles 19 and 25 of the ACRWC.
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Republic and whose other parent is a citizen or permanent resident of South Africa to
leave the country when the spousal relationship ends so that he may apply for a change
of status from outside the country. Nor have they explained what legitimate
governmental purpose is served by the provision of the Immigration Act that requires a
foreigner who is a parent of a South African child to cease to work when his spousal
relationship with the other parent of that child who is a South African citizen or
permanent resident comes to an end. It seems irrational. How can one law in a
country’s legal system oblige parents of a child to support and maintain their child but
another one oblige the same parent to stop working just because the spousal relationship
has ended even though such parent’s legal obligation to support and maintain that child
has not ended?
The nature and extent of the limitation
[105] The nature and extent of the limitation will be apparent from the discussion that
preceded the conclusion that the Immigration Act limits a number of rights entrenched
in the Bill of Rights.
The relation between the limitation and the purpose
[106] As I have already said, I can see no legitimate purpose that is served by these
limitations and the respondents have not suggested any.
Less restrictive means to achieve the purpose
[107] When no legitimate purpose has been shown for a limitation of a right entrenched
in the Bill of Rights, as is the case here, one can obviously not even begin to talk about
less restrictive means to achieve a purpose. Less restrictive means can only be
considered in relation to a legitimate purpose that has been shown.
[108] In the light of the above it has not been shown that the limitations on the rights
entrenched in the Bill of Rights as discussed above are reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom.
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Accordingly, the Immigration Act and its Regulations unjustifiably limit the rights
entrenched in the Bill of Rights as discussed above. To that extent the Immigration Act
and the Regulations are inconsistent with the Constitution and, therefore, invalid.
[109] I have also concluded that section 18(2) of the Immigration Act limits the right
to human dignity of both the child and the parent who is a foreign national, the right to
family life as well as the child’s rights in section 28(1)(b) and (2) of the Constitution .
These limitations have not been shown to be reasonable and justifiable in terms of
section 36(1) of the Constitution . To th e extent that section 18(2) of the Immigration
Act is inconsistent with the Constitution, it is invalid. Before I can deal with the remedy,
I propose to deal with the separate case of Mr Tembo.
Mr Tembo
[110] One of the applicants in the Rayment matter is Mr Tapiwa Tembo. Mr Tembo
is an adult boxing coach. He is a Zimbabwean and came to South Africa illegally many
years ago. He has been in and out of South Africa a number of times, each time illegally.
Mr Tembo had a relationship with a woman who is a South African citizen and they
had a child, namely , K. The Director -General of the Department of Home Affairs
declared Mr Tembo undesirable in terms of section 30 of the Immigration Act. He did
so without considering the interests of Mr Tembo’s minor child. Section 30 reads:
“Undesirable persons
30. (1) The following foreigners may be declared undesirable
by the Director-General, as prescribed, and after such
declaration do not qualify for a port of entry visa, visa,
admission into the Republic or a permanent residence
permit:
(a) Anyone who is or is likely to become a public
charge;
(b) anyone identified as such by the Minister;
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(c) anyone who has been judicially declared
incompetent;
(d) an unrehabilitated insolvent;
(e) anyone who has been ordered to depart in terms
of this Act;
(f) anyone who is a fugitive from justice;
(g) anyone with previous criminal convictions
without the option of a fine for conduct which
would be an offence in the Republic , with the
exclusion of certain prescribed offences; and
(h) any person who has overstayed the prescribed
number of times.
(2) Upon application from the affected person, the Minister
may, for good cause, waive any of the grounds of
undesirability.”
[111] Mr Tembo instituted an application in the High Court for the review and setting
aside of the Director -General’s decision to declare him undesirable. In the founding
affidavit Mr Tembo challenged the Director -General’s decision to declare him
undesirable on one ground. That was that the Director-General did not take into account
the interests of his minor child when he decided to declare him undesirable. In written
submissions other grounds of challenge were added which had not been foreshadowed
in the founding affidavit. It is not permissible for an applicant to argue a case different
from the case foreshadowed in the founding affidavit. It is, of course, permissible to
argue a point of law not previously raised within certain limited parameters.
[112] Mr Tembo ’s ground of challenge was obviously based on the provisions of
section 28(2) of the Constitution. Section 28(2) reads:
“A child’s best interests are of paramount importance in every matter
concerning the child.”
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Mr Tembo was also obviously advised about the judgments of this Court in cases such
as S v M and Pridwin.
[113] The Director-General did not dispute that he was obliged to have taken the
interests of Mr Tembo’s minor child into account nor did he dispute that he did not take
them into account. However, he pointed out that the interests of the child would not be
the only factor to take into account in making the decision. The Director -General
emphasised the fact that Mr Tembo had entered and left South Africa illegally on many
occasions and was approaching the Court with dirty hands. The Director -General
pointed out that in April 2009 the Government of South Africa had introduced a special
dispensation for visa permits for Zimbabweans which had been extended from time to
time and which Mr Tembo could have taken advantage of to regularise his stay in
South Africa but he had not done so.
[114] The Director-General also took the point that in terms of section 31(2) of the
Immigration Act Mr Tembo could have applied to the Minister to waive his
undesirability status before approaching the Court but he did not do so nor did he appeal
to the Minister against the decision of the Director-General declaring him undesirable.
For these reasons the Director-General submitted that Mr Tembo had failed to exhaust
internal remedies before approaching the Court to have the Director-General’s decision
reviewed and set aside. The Director -General submitted that for those reasons
Mr Tembo’s and his minor child’s application should be dismissed.
[115] In my view the High Court was right to dismiss Mr Tembo ’s application on the
basis that he was approaching the Court with dirty hands. He had contravened the
Immigration Act on numerous occasions. He has not provided any explanation as to
why he entered this country illegally when he could have entered the co untry legally.
Not only did he do this once but he entered and left South Africa illegally many times.
He has stayed in South Africa illegally for many years and now he approaches our courts
for rel ief. As long as Mr Tembo has not provided an acceptable explanation for
engaging in a series of contraventions of the Immigration Act, his hands remain dirty
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and our courts should not entertain his application for benefits of the very
Act of Parliament which he has contravened deliberately for many times. No
self-respecting country can allow someone who has conducted himself towards its laws
the way that Mr Tembo has conducted himself towards our Immigration Act to approach
its courts and seek benefits under the same Act when it suits him or her after deliberately
contravening that Act countless times.
[116] The “dirty hands ” principle is not the only basis on which Mr Tembo ’s
application stands to be dismissed. Another basis is that Mr Tembo did not exhaust
internal remedies. Counsel for Mr Tembo accepted that Mr Tembo failed to exhaust
internal remedies because he failed to approach the Minister and request him to waive
the declaration made by the Director-General that Mr Tembo was an undesirable person.
Mr Tembo also failed to lodge an appeal to the Minister against the decision of the
Director-General to declare him an undesirable person.
[117] Section 7(2)(a), (b) and (c) of the Promotion of Administrative Justice Act 48
(PAJA) provides:
“7 Procedure for judicial review
. . .
(2) (a) Subject to paragraph (c), no court or tribunal
shall review an administrative action in terms of
this Act unless any internal remedy provided for
in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must,
if it is not satisfied that any internal remedy
referred to in paragraph (a) has been exhausted,
direct that the person concerned must first
exhaust such remedy before instituting
proceedings in a cou rt or tribunal for judicial
review in terms of this Act.
48 3 of 2000.
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(c) A court or tribunal may, in exceptional
circumstances and on application by the person
concerned, exempt such person from the
obligation to exhaust any internal remedy if the
court or tribunal deems it in the interest of
justice.”
[118] Mr Tembo did not exhaust the internal remedies available to him. His counsel
sought to persuade this Court that there were exceptional circumstances in this case as
contemplated in section 7(2)(c) which would justify him being exempted from first
exhausting the internal remedies.
[119] The first basis on which Mr Tembo relied to contend that there were exceptional
circumstances was that, even if he had approached the Minister and asked him to waive
his status as an undesirable person in terms of section 30(2) , he would still not have
been able to apply for any status to stay and work in South Africa to support his child.
He says that this is because he is a foreign parent no longer in a spousal relationship
with the child’s South African parent. He says that no visa would have entitled him to
work in South Africa and that it, therefore, made no sense to apply for a waiver. He
says what made sense was for him “to join this application and add a review to the
undesirability decision”.
[120] This argument has no merit. Mr Tembo has created additional work for this
Court in circumstances where this Court might not have had to deal with the declaration
that he is an undesirable person if he had exhausted the internal remedies . He should
have approached the Minister and s ought to get that hurdle out of the way. The
explanation that Mr Tembo gave in this regard for not exhausting internal remedies is
not a valid reason for his failure to exhaust internal remedies.
[121] Another explanation that Mr Tembo gives for his failure to exhaust internal
remedies is that, to remain in South Africa, he would have had to apply to the
Director- General for an authorisation in terms of section 32(1) while he was waiting
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for the outcome of his application to the Minister for a waiver. He then says that the
Director-General would have rejected his request for a consideration of his child’s best
interests. He then submits that it was just and equitable for him to join this application
without applying for authorisation. This explanation falls to be rejected, too. It is based
on an assumption that the Director-General would have decided the application against
him. There is no basis for that. It wrongly assumes that the Director-General would
not apply his mind properly to the application.
[122] The third explanation is not very different from the second one. Mr Tembo says
that, if he had appealed to the Minister against the Director-General’s decision declaring
him an undesirable person without first obtaining a court order that the Director-General
erred in not taking into account his child ’s best interests, the Minister would have
dismissed his appeal. There is no merit in this explanation. Mr Tembo would have
dealt with the relevance of the child’s best interests in his representations to the Minister
in regard to the appeal. There is simply no basis for Mr Tembo to say that the Minister
would have rejected his contention about the relevance of his child’s best interests.
[123] Mr Tembo is not entitled to any order of this Court directing the Minister to
consider his child’s best interests in dealing with the appeal should Mr Tembo appeal
to the Minister. Mr Tembo cannot obtain any order from this Court before he exhausts
his internal remedies. Normally, one would not order Mr Tembo to pay costs but I am
of the view that in this case this Court should award costs against Mr Tembo as a mark
of its disapproval for his illegal conduct over many years. Accordingly, Mr Tembo ’s
application for leave to appeal against the decision of the High Court in regard to the
Director-General’s decision to declare him an undesirable person should be dismissed
with costs on the basis that it is not in the interests of justice to entertain it.
Remedy
[124] When one has regard to the papers filed by the parties in the High Court in this
matter, one can see that the dispute between them was quite wide. However, following
the judgment of the High Court and when the matter was referred to this Court, the
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dispute between the parties narrowed considerably. The result was that , even at the
hearing before us , it was clear that there was room for a further narrowing of the
disagreements between the parties, if not a complete agreement. The parties were then
asked to have further discussions after the hearing to see whether they could not reach
an agreement as to the terms of the order that this Court should grant because by then
the respondents had largely conceded that the Immigration Act and the Regulations
promulgated thereunder were inconsistent with the Constitution and, therefore, invalid
in substantially the respects contended for by the applicants. By that time the bone of
contention between the parties was the scope of the order of invalidity and the reading-
in that this Court was required to do. There was also agreement that the declaration of
invalidity had to be suspended for 24 months.
[125] As far as section 18(2) of the Immigration Act is concerned, the parties have
agreed that after the word “work” in subsection (2) and, before the full stop, the
following words must be added to subsection (2):
“provided that if:
(a) the South African citizen or permanent resident is a child;
(b) the foreigner is a parent of the child; and
(c) the foreigner is currently fulfilling or demonstrates an
intention to fulfil his or her responsibilities to that child;
then the foreigner shall be allowed to work in the Republic for the full duration
of the visa.”
[126] Subsequent to the hearing, the parties held further discussions to try and narrow
down their areas of disagreement. They filed a joint note which recorded that they were
able to agree on further matters although there were still matters in respect of which
disagreement remained. The Court appreciates the efforts made by both sides to try and
narrow the issues on which they disagreed which, to a very large extent, they succeeded
in doing, though not completely.
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[127] It is appropriate to reproduce the contents of the joint note of the parties. The
parties attached to that joint note separate draft orders they respectively asked this Court
to grant. The different draft orders reflected each party’s position which was informed
both by what it was prepared to agree to and its disagreement with the other. Here is
the joint note (the underlining and italics are in the original):
“I INTRODUCTION
1. At the hearing of this matter, the parties undertook to engage to attempt to narrow their
disagreements on the appropriate order this Court should make.
2. The parties have not been able to reach complete agreement.
3. However, they have significantly narrowed the areas of disagreement.
4. We attach the Applicants’ revised draft order marked A, and the DHA ’s revised draft order
marked B.
5. In this Note, we identify the areas on which the parties now agree, and the issues on which
they still disagree.
6. This is a joint note, and the parties therefore do not seek to argue for or against either position,
but merely to describe agreements and disagreements.
II NEW AREAS OF AGREEMENT BETWEEN THE PARTIES
7. The parties have reached agreement on four issues that were previously in dispute.
8. First, the parties now agree that, contrary to the High Court’s order, there must be an interim
reading-in to section 11(6) of the Immigration Act. They have also agreed on the basic structure
of that interim reading-in. It would deem that, despite the termination of the good faith spousal
relationship, the section 11(6) visas of spouses who meet defined criteria (on which the parties
disagree) will remain valid until the outcome of an application for a new visa, provided that an
application therefor is made within three months.
9. Second, the parties now agree that – if either proposed reading-in to section 11(6) is made –
it is not necessary to declare section 43 of the Immigration Act invalid, or to craft an interim
reading-in to that section. The Applicants had sought that reading -in because section 11(6)
visas contain a standard condition that the foreign spouse reside with the South African spouse,
and a breach of that condition would trigger section 43. In light of the proposed interim
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reading- in to section 11(6), the Applicants accept that is unnecessary. The deemed validity of
the section 11(6) visa following the termination of the spousal relationship would apply even if
the parties ceased to reside together.
10. Third, the parties agree that the High Court ’s declaration that section 11(1)(b) of the
Immigration Act is unconstitutional, and its interim reading -in to regulation 11(4), are
unnecessary and should not be confirmed.
11. Fourth, the parties agree that it is not necessary to make an interim reading -in to
section 10(6)(a), provided that the Court orders an interim reading-in to regulation 9(9).
THE REMAINING DISAGREEMENTS
12. The parties continue to disagree about five issues.
13. First, the parties disagree about the scope of the declaration of invalidity. While they agree
about which sections of the Immigration Act and which regulations should be declared invalid,
they do not agree about the extent of that invalidity:
13.1. The DHA contends that the impugned provisions are unconstitutional only to the extent
that they require a foreigner who meets various conditions to cease working in South Africa
and to make application for a status from outside South Africa.
13.2. The Applicants agree that Immigration Act and Regulations are invalid to this extent
(although they disagree about the conditions the foreigner must meet in the ways set out below).
But the Applicants contend that Immigration Act is also invalid to the extent that it does not
allow a foreigner (who meets various conditions) who is otherwise eligible for a relative’s visa
under section 18(1), to work in South Africa.
14. Second, the parties disagree about whether the interim reading -in orders to section 11(6),
section 18(2), and regulation 9(9) should be limited to parents or extended to non-parents:
14.1. The Respondents contend that only parents should be covered by those interim reading -
in orders;
14.2. The Applicants contend that the interim reading-in orders should also cover other holders
of parental rights and responsibilities under the Children’s Act. In order to address the concern
about abusive agreements under section 22 of the Children ’s Act, the Applicants propose an
additional requirement that the conferral of those rights and responsibilities must have been
made or confirmed by a court order.
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15. Third, the parties disagree about whether the interim reading-in to section 18(2) – creating
a relative’s visa with a right to work – should only be available to people who previously held
a section 11(6) visa, or to all foreigners:
15.1. The DHA’s position is that only ‘a foreigner who was the holder of a spousal visa in terms
of section 11(6) which is no longer valid because the good faith spousal relationship on which
it was based has terminated’ will be eligible for the new visa under section 18(2).
15.2. The Applicants ’ position is that any foreigner who meets the other requirements –
(a) parent or holder of parental responsibilities; and (b) supports or intends to support the child –
will be entitled to work, no matter their prior status.
16. Fourth, the parties disagree about whether, in order to benefit from the extension of a
section 11(6) visa, or to qualify for the right to work under section 18(2), a foreigner must
demonstrate that they need to work in order to fulfil their rights and responsibilities:
16.1. The Applicants’ position is that all foreigners should benefit from both interim reading-in
orders without demonstrating that they need to work;
16.2. The DHA’s position is that the two extensions should be available only to a foreigner ‘who
demonstrates that she or he is required to work in South Africa in order to fulfil their parental
responsibilities to their South African citizen or permanent resident child’.
17. Fifth, the parties disagree about whether any of the requirements, other than being a
parent/holder of parental responsibilities, should apply to the reading-in to regulation 9(9):
17.1. The Applicants’ view is that as the regulation merely determines whether a foreigner may
be in the Republic when they apply for a visa, it is not necessary to repeat the requirements for
the deemed extension of section 11(6) visas, or the right to work under section 18(2 ), to that
preliminary step.
17.2. The DHA takes the view that only foreigners who meet their defined criteria – (a) a
previous holder of a section 11(6) visa; (b) currently supporting or intends to support the child;
and (c) needs to work – should be entitled to the benefit of regulation 9(9).”
[128] Section 172 of the Constitution reads:
“172. (1) When deciding a constitutional matter within its
power, a court—
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(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to
the extent of its inconsistency; and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective
effect of the declaration of invalidity;
and
(ii) an order suspending the declaration of
invalidity for any period and on any
conditions, to allow the competent
authority to correct the defect.
(2) (a) The Supreme Court of Appeal, the
High Court of South Africa or a court of
similar status may make an order concerning
the constitutional validity of an
Act of Parliament, a provincial Act or any
conduct of the President, but an order of
constitutional invalidity has no force unless it
has been confirmed by the
Constitutional Court.
(b) A court which makes an order of constitutional
invalidity may grant a temporary interdict or
other temporary relief to a party, or may
adjourn the proceedings, pending a decision of
the Constitutional Court on the validity of that
Act or conduct.
(c) National legislation must provide for the
referral of an order of constitutional invalidity
to the Constitutional Court.
(d) Any person or organ of state with a sufficient
interest may appeal, or apply, directly to the
Constitutional Court to confirm or vary an
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order of constitutional invalidity by a court in
terms of this subsection.”
[129] Section 172(1) obliges this Court to declare any law or conduct that is
inconsistent with the Constitution invalid to the extent of its inconsistency. The law
contemplated in section 172(1) includes regulations promulgated under an Act of
Parliament.
[130] To the extent that the High Court may have declared any provisions of the
Immigration Act constitutionally invalid, its order did not come into force because in
terms of section 172(2) it only comes into force if it is confirmed by this Court. To the
extent that the High Court may have declared any regulation constitutionally invalid, its
order would have come into force unless suspended by virtue of an appeal because such
an order does not require to be confirmed by this Court before it may come into force.
[131] The parties are agreed that whatever declaration of invalidity this Court makes
will have to be suspended for 24 months to enable the competent authorities to correct
the constitutional defects in the Immigration Act and Regulations that have been
identified in this judgment. I agree with this. The parties have also agreed that the
remedy of reading -in should be invoked in respect of certain sections of the
Immigration Act and the Regulations. I agree that the remedy of reading -in is
appropriate in this case.
[132] I have considered both draft orders submitted by the parties. Subject to certain
amendments, I have adopted the order proposed by the applicants. Although I have not
limited the order to persons who were previously issued with a spousal visitor ’s visa
under section 11(6) of the Immigration Act, I have declined the invitation to extend this
order to guardians and other caregivers. Apart from persons who had previously been
issued with a section 11(6) spousal visitor ’s visa, I have extended the order to parents
of a child who is a South African citizen or who is a permanent resident. In my view it
is inadvisable to extend the order to other categories of persons because their cases have
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not been dealt with properly and adequately in the affidavits. The persons in those
categories are not similarly situated to the applicants. This Court has dealt
incrementally with the cases involving the grant ing of visas and permits to various
categories of persons. This can be seen from the cases of Booysen, Dawood and
Nandutu. The cases of persons falling under other categories of persons will be dealt
with only as and when they are brought before our courts.
[133] In the result I make the following order, which shall apply to both matters:
Part A
1. The orders in paragraphs 1 to 7 of Part A apply to all applicants other than
Mr T Tembo in both capacities in which he features as an applicant.
2. The appeal by the applicants is upheld only to the extent reflected below.
3. It is declared that sections 10(6), 11(6), and 18(2) of the Immigration Act
13 of 2002 ( “Immigration Act ”), and regulation 9(9)(a) of the
Immigration Regulations, 2014 published under GN R413 in
Government Gazette 37679 of 22 May 2014 (as amended)
(“the Regulations”), are inconsistent with the Constitution of the Republic
of South Africa, 1996, and invalid, to the extent that they—
3.1. require a foreigner who:
3.1.1. is the holder of a section 11(6) visa;
3.1.2. is a parent of a child who is a citizen or permanent resident;
and
3.1.3. is currently fulfilling his or her responsibilities to that child,
or demonstrates an intention to do so,
to cease working or leave the Republic because that foreigner ’s
good faith spousal relationship has ended;
3.2. require a foreigner who is a parent of a child who is a citizen or
permanent resident to leave the Republic in order to apply for a
new visa;
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3.3. do not allow a foreigner, who is otherwise eligible for a relative ’s
visa under section 18(1), to work in South Africa where that
foreigner:
3.3.1. is the parent of a child who is a citizen or a permanent
resident; and
3.3.2. is currently fulfilling his or her responsibilities to that child,
or if he or she is not fulfilling his or her responsibilities to
that child, at least demonstrates an intention to do so as soon
as he or she is able to do so.
4. The declarations of invalidity in paragraph 1 are suspended for a period
of 24 months from the date of this order to enable Parliament to correct
the constitutional defects relating to Immigration Act identified in this
judgment and to enable the first respond ent to correct the constitutional
defects in regulation 9(9)(a) of the Regulations.
5. During the period of suspension—
5.1. section 11(6)(a) shall be deemed to read as follows:
‘(a) such visa shall only be valid while the good faith spousal
relationship exists, save that in the case of a foreigner
whose good faith spousal relationship has terminated and
who:
(i) is a parent of a child who is a citizen or permanent
resident; and
(ii) is at the time fulfilling, or demonstrates an intention
to fulfil, his or her parental responsibilities to that
child,
such visa shall be deemed to be valid, pending the outcome of an
application by the foreigner for a new visa which must be made
within three months of the end of the good faith spousal
relationship. Provided further that, if such application is made
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after the expiry of three months, good cause is shown why it was
made after that period.’
5.2. section 18(2) of Immigration Act shall be deemed to read as
follows:
‘The holder of a relative ’s visa may not conduct work, provided
that if:
(a) the South African citizen or permanent resident is a child;
(b) the foreigner is a parent of the child; and
(c) the foreigner is currently fulfilling or demonstrates an
intention to fulfil his or her responsibilities to that child,
then the foreigner shall be allowed to work in the Republic
for the full duration of the visa.’
5.3. regulation 9(9)(a) is deemed to include a new
sub- regulation 9(9)(a)(iv) that reads as follows:
‘(iv) is the parent of a child who is a citizen or permanent
resident.’
6. Should Parliament fail to correct the constitutional defects in
Immigration Act within 24 months from the date of this judgment and
should the first respondent fail to correct the constitutional defects in the
Regulations within the 24 months from the date of this judgment, the
reading-in of the Immigration Act and the Regulations in this order shall
become final.
7. With respect to Tereza Rayment, Thierry Gondran, Richard Anderson and
Joshua Ogada, it is declared that the visas granted to them have not
expired and remain valid until their applications for a new status are
determined.
8. The respondents are to pay the applicants ’ costs in both applications
including the costs of two counsel.
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Part B
1. The application for leave to appeal by Mr T Tembo in both capacities is
refused with costs, including the costs of two counsel, such costs to be
paid by Mr T Tembo in his personal capacity.
2. The costs in 8 above shall not include the costs relating to Mr Tembo in
his personal and representative capacities in the application arising from
WCHC Case No 3919/20.
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For the Applicant: A Katz SC, M Bishop and E Cohen
instructed by Eisenberg & Associates
For the Respondents: I Jamie SC, M Adhikari and
M Mokhoaetsi instructed by
Webber Wentzel