Introduction and Factual Background
Chief Justice Zondo, along with Justices Kollapen, Madlanga, Majiedt, Makgoka, Mathopo, Potterill, Rogers, and Theron, presided over two applications seeking confirmation of an order of constitutional invalidity initially made by Sher J of the Western Cape Division of the High Court, Cape Town. These applications, referred to as the Rayment and Anderson matters, were jointly considered in the High Court and involved the same respondents: the Minister of Home Affairs, the Director-General and Deputy Director-General of the Department of Home Affairs, and the Department itself.
The Rayment and Anderson Applications
In the Rayment application, the applicants included Ms. Tereza Rayment and five others, some representing their minor children. The Anderson application was brought forth by Mr. Richard William Anderson and three others, also including representations for minor children. Notably, the applicants in both cases appealed against certain parts of the High Court’s order, a right granted to them under section 172(2)(d) of the Constitution.
Applicant Profiles and Background
The Rayment matter involved applicants of German, French, and Zimbabwean nationality (Ms. Rayment, Mr. Gondran, and Mr. Tembo, respectively). In contrast, the Anderson matter included British (Mr. Anderson) and Kenyan (Mr. Ogada) nationals. Most applicants had been residing and working in South Africa on “spousal” visas, as per section 11(6) of the Immigration Act. These visas, however, ceased to be valid following the termination of their spousal relationships with South African citizens. Mr. Tembo’s situation was addressed separately in the judgement.
The applicants, during their relationships with their former South African spouses, had children who were either born in South Africa or acquired South African citizenship. These applicants had been living and working in South Africa for many years, fulfilling their roles as responsible and supportive parents and caregivers, both during and after their spousal relationships.
Circumstances of Individual Applicants
Ms Tereza Rayment
Background and Visa Journey: Ms Tereza Rayment, a German citizen, met a South African man in the UK in 2004 and subsequently moved to Spain and then Berlin, where their two sons were born. In 2013, the family relocated to Cape Town, South Africa. Ms Rayment initially entered the country on a relative’s visa, which was later converted to a spousal visa upon her marriage in the same year. This visa, renewed in 2017, allowed her to work in Cape Town but expired in November 2020 following the breakdown of her marriage in 2015.
Current Challenges: Post-separation, Ms Rayment emerged as the primary caregiver and financial provider for her children. She faced difficulties regarding employment prospects outside South Africa and expressed concerns about her estranged husband’s reluctance to allow the children to relocate with her, should she be forced to leave the country.
Mr Thierry Gondran
Visa History and Personal Circumstances: Mr Thierry Gondran, a French national, married a South African woman in 2003. They had three sons while living in France. In 2010, Mr Gondran moved to South Africa on a visitor’s visa with his children, later obtaining a spousal visa in 2014. This visa was extended in 2016 but expired following his retrenchment and subsequent return to France in 2018. He re-entered South Africa on a tourist visa in 2019.
Present Situation: Mr Gondran is currently residing in Milnerton, Cape Town, with his two elder sons, financially supporting and caring for them. His youngest son continues to live in France with his grandmother.
Mr Richard Anderson
Background and Visa Status: British national Mr Richard Anderson, a company executive, married a South African woman in 2015. He had been living and working in South Africa since 2013 on a spousal visa, which was renewed several times. In 2018, he applied for permanent residence, but the application had not been processed by the time his marriage ended in 2020.
Current Challenges: Engaged in divorce proceedings, Mr Anderson remains a key figure in his son’s life and is the main financial contributor to the household. He expressed concerns about employment prospects in the UK, highlighting his established professional life in South Africa and his son’s close relationships with extended family members there.
Mr Joshua Ogada
Visa and Marital History: Kenyan national Mr Joshua Ogada, a media researcher/consultant, married a South African woman in 2002. They had a son in 2005 in Cape Town. Mr Ogada was granted a spousal visa in 2008, which was renewed multiple times until their separation in 2016 and subsequent divorce in 2019.
Present Circumstances: Mr Ogada and his ex-wife share equal responsibility for their son’s maintenance. He has developed a strong bond with his son and ex-wife and considers South Africa his home. Mr Ogada faced challenges in pursuing permanent residence due to financial constraints.
High Court Proceedings and Findings
Initiation of Applications: The applicants in both the Rayment and Anderson matters initiated applications in the High Court, challenging the constitutional validity of certain provisions of the Immigration Act and its regulations. Their primary aim was to obtain a declaration of invalidity, suspended for a specific period, alongside a provisional ‘reading-in’ remedy during the suspension period. This ‘reading-in’ was to become permanent if the constitutional defects were not rectified within the suspension period. The respondents opposed these applications.
Joint Hearing and Decision: Both matters were jointly heard by Sher J in the High Court. The court found that the legislative provisions in question violated the applicants’ constitutional rights to dignity, as well as the constitutional and parental rights of their children under section 28 of the Constitution and the Children’s Act. The court dismissed the argument of unfair discrimination.
Justifiability Analysis: In its analysis under section 36 of the Constitution, the High Court concluded that the respondents failed to demonstrate that the limitations imposed by the challenged provisions were reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.
Issues with the High Court’s Order
Declaration of Invalidity: The High Court declared certain sections of the Immigration Act inconsistent with the Constitution and therefore invalid. However, the order was deemed not competent as it ambiguously declared either the entire Immigration Act or specific sections of it invalid.
Problematic Nature of the Order: The High Court’s order was problematic as it did not clearly specify whether the entire Act or only certain sections were invalid. This ambiguity was identified as a fatal defect, rendering the order ineffective. Consequently, the ‘reading-in’ granted by the High Court could not stand, as it was contingent on a clear declaration of invalidity.
Potential for Appropriate Orders: Despite these issues, the Court acknowledged the possibility of making an appropriate order if it found that a declaration of invalidity and other orders should indeed be made. This recognition opened the door for further judicial consideration and potential remedial action.
Constitutional Court Proceedings and Legal Framework
Confirmation of High Court Orders: The applicants approached the Constitutional Court seeking confirmation of certain orders made by the High Court. Additionally, they expressed dissatisfaction with parts of the High Court’s order and appealed against these aspects.
Foundational Constitutional Provisions: The Constitutional Court’s analysis began by outlining key sections of the Constitution of South Africa:
- Section 1: Emphasizes the foundational values of the Republic of South Africa, including human dignity, equality, and the advancement of human rights and freedoms.
- Section 2: Establishes the Constitution as the supreme law, rendering any law or conduct inconsistent with it invalid.
- Section 3: Details the common South African citizenship, its entitlements, duties, and the legislative framework for the acquisition, loss, and restoration of citizenship.
- Section 9 (Equality): Addresses equality before the law, the right to equal protection and benefit of the law, and the prohibition of unfair discrimination on various grounds.
- Section 10 (Human Dignity): Affirms everyone’s inherent dignity and the right to have it respected and protected.
- Section 28 (Rights of Children): Focuses on the rights of children, including the right to family or parental care, basic needs, protection from maltreatment, and the paramount importance of a child’s best interests.
- Section 29 (Education): Guarantees the right to basic and further education, which the state must progressively make available and accessible.
Interpretation of the Bill of Rights and Legislation: The Court highlighted the importance of Section 39(1) in interpreting the Bill of Rights, which mandates promoting the values of an open and democratic society based on human dignity, equality, and freedom, and considering international and foreign law. Additionally, Section 39(2) was noted as crucial for interpreting legislation and developing common and customary law, emphasizing the promotion of the spirit, purport, and objects of the Bill of Rights.
Overview of the Immigration Act
Regulatory Framework: The Immigration Act is designed to regulate the admission, residence, and departure of individuals in South Africa. Its preamble emphasizes the commitment to human rights standards, promoting a human rights-based culture of enforcement, compliance with international obligations, and educating civil society about the rights of foreigners and refugees.
Definitions and Key Provisions
Key Definitions: The Act defines critical terms such as ‘illegal foreigner’, ‘marriage’, ‘spouse’, and ‘work’. These definitions are essential for understanding the Act’s application and the status of individuals under it.
Entry and Departure Regulations: Section 9 outlines the conditions for entering or departing South Africa, including requirements for valid passports, adherence to ports of entry, and the necessity for documentation and interviews by immigration officers.
Temporary Residence Provisions
General Rules for Temporary Residence: Sections 10 to 24 of the Act deal with temporary residence. Section 10(1) states that foreigners, barring permanent residents, must possess a visa issued for a prescribed period upon admission.
Types of Visas: Section 10(2) lists various visas, including visitor’s, study, business, medical treatment, relative’s, and work visas.
Visa Issuance and Conditions: The Act stipulates that visas are effective post-admission and are issued based on the condition that the holder is not or does not become a prohibited or undesirable person. The Director-General may impose individual terms and conditions on a visa.
Changes in Visa Status: According to Section 10(6), foreigners (excluding those on visitor’s or medical treatment visas) may apply to change their visa status or conditions while in the Republic, subject to the Act. However, changes in status for visitor’s or medical treatment visas can only be made in exceptional circumstances.
Extension and Cancellation of Visas: The Director-General has the authority to extend visas and notify holders of visa cancellations, providing reasons and a timeframe for departure. Visa holders can make representations before the final decision is made.
Relevance to the Case
Focus on Specific Visas: For the purposes of this case, the Court focused on visitor’s visas (section 11), relative’s visas (section 18), and work visas (section 19), as these were most pertinent to the applicants’ circumstances.
Visitor’s Visa under the Immigration Act
Section 11 of the Immigration Act: This section outlines the criteria and conditions for issuing a visitor’s visa. It specifies that such visas may be issued for purposes other than those covered in sections 13 to 24 of the Act, subject to certain conditions.
Types of Visitor’s Visas
- General Visitor’s Visa (Subsection 1):
- Issuance Criteria: The Director-General may issue a visitor’s visa to foreigners who comply with section 10A and provide necessary financial or other guarantees for their departure.
- Duration and Renewal: This visa may not exceed three months but can be renewed for a further period not exceeding three months. Alternatively, it can be issued for up to three years for foreigners engaged in specific activities like academic sabbaticals, voluntary or charitable activities, research, or other prescribed activities, provided they have sufficient financial resources.
- Work Prohibition and Exception: Generally, holders of this visa may not conduct work, but exceptions can be made for certain categories, subject to authorization by the Director-General.
- Spousal Visitor’s Visa (Subsection 6):
- Eligibility: This visa is available to foreigners who are spouses of South African citizens or permanent residents and do not qualify for other visas (sections 13 to 22).
- Conditions: The visa remains valid as long as the good faith spousal relationship exists. The holder may be authorized to perform any immigration activities provided for in other visas and must apply for permanent residence within three months of qualifying for it.
- Validity and Permanent Residence: The visa’s validity is contingent on the good faith spousal relationship unless the foreigner is granted a permanent residence permit. If permanent residence is granted, the need for the spousal visitor’s visa is negated, even if the spousal relationship ends.
Implications for Foreigners
Critical Considerations: The visitor’s visa, especially the spousal visitor’s visa, is crucial for foreigners married to South African citizens or permanent residents. The visa’s validity is closely tied to the status of the spousal relationship and the pursuit of permanent residence, highlighting the precarious nature of the immigration status for those in changing personal circumstances.
Various Visa Types and Permanent Residence under the Immigration Act
Relative’s Visa (Section 18)
Eligibility and Conditions: A relative’s visa can be issued to a foreigner who is an immediate family member of a South African citizen or permanent resident. The citizen or permanent resident must provide financial assurance. Importantly, holders of a relative’s visa are prohibited from conducting work in South Africa, and unlike visitor’s visas, there is no provision for the Director-General to authorize work for these visa holders.
Work Visa (Section 19)
General Work Visa: The Director-General has the authority to issue a general work visa to foreigners who do not possess skills or qualifications deemed critical for South Africa. This visa can also extend to immediate family members of such skilled or qualified individuals.
Permanent Residence (Section 25)
Rights and Conditions: Permanent residence permit holders enjoy most rights, privileges, duties, and obligations of citizens, except those explicitly ascribed to citizenship. The permit is issued on the condition that the holder is not a prohibited or undesirable person.
Direct Residence (Section 26)
Eligibility for Permanent Residence: This section outlines the criteria for issuing permanent residence permits, including to foreigners who have held a work visa for five years and have an offer for permanent employment, and to spouses of citizens or permanent residents, provided the marriage has lasted five years and is in good faith. Notably, the permit lapses if the good faith spousal relationship ends within two years of issuing the permit, except in the case of death.
Other Grounds for Permanent Residence (Section 27)
Residence for Relatives: Permanent residence permits can also be issued to foreigners of good and sound character who are relatives within the first step of kinship of a citizen or permanent resident.
Withdrawal of Permanent Residence (Section 28)
Revocation Conditions: The Director-General may withdraw a permanent residence permit based on specific grounds outlined in the section.
Illegal Foreigners (Section 32)
Obligations and Deportation: Illegal foreigners are required to depart unless authorized to remain pending an application for a status change. If not authorized, they are subject to deportation.
The Problem with Spousal Visa Expiry
Visa Expiry upon Relationship Termination: The central problem for both sets of applicants is the expiration of a spousal visa when a marriage or good faith spousal relationship with a South African citizen or permanent resident ends. This expiration requires the foreign national to immediately leave South Africa, rendering their continued stay illegal.
Consequences of Visa Expiry:
- Prohibition on Work: Foreign nationals on a spousal visa cannot continue working in South Africa once the relationship ends. This leads to a loss of livelihood and the inability to support any children from the relationship.
- Impact on Children: Children born from these relationships suffer as the foreign parent, unable to work, cannot provide for basic needs, including accommodation, food, medical care, and education.
- Single Parent Challenges: If the South African parent is unemployed or unable to earn an income, the family faces severe financial difficulties, potentially leading to a significant downgrade in lifestyle, loss of home, or inability to afford education and adequate food.
- Requirement for Visa Application from Abroad: Foreign nationals wishing to continue living in South Africa must apply for a new visa from outside the country. This process can lead to prolonged separation from their South African spouse/partner or child and uncertainty about the ability to return.
- Wide-Ranging Impact: These consequences apply regardless of the duration of the marriage/relationship or the age of the children involved. They can affect families with very young children or those who have been together for many years.
- Financial Implications on Property: If the couple jointly paid for a property, the South African citizen or permanent resident might lose it if they cannot afford payments without the foreign national’s contribution.
Human Dignity and Legal Limitations
Violation of Human Dignity: The legal framework, by preventing foreign nationals from working or conducting business after their spousal visa expires, significantly limits the human dignity of both the foreign national and their children. This situation is exacerbated when the foreign national has dependents to support. Additionally, the requirement to leave South Africa to apply for a change of status further infringes upon their dignity and family life.
This summary highlights the profound and multifaceted impact of the expiry of spousal visas under the current Immigration Act, affecting not only the foreign nationals but also their families, particularly in cases involving children.
The Dawood Case and Its Relevance
Dawood Case Background: The Dawood case, a pivotal judgment of the Constitutional Court, dealt with the constitutionality of certain provisions of the Aliens Control Act, which was later repealed by the Immigration Act. The case focused on the conditions under which immigration permits were granted, particularly concerning foreign spouses of South African citizens.
Key Points from Dawood
- Immigration Permit Provisions: The Aliens Control Act allowed immigration permits to be granted to foreigners outside South Africa, with exceptions for those holding valid work permits or temporary residence permits as spouses, dependent children, or needy family members.
- Constitutional Question: The central issue was whether it was constitutional to require a foreign spouse in South Africa to hold a valid temporary residence permit to be granted an immigration permit.
- Implications for Foreign Spouses: This requirement meant that a foreign spouse without a valid temporary residence permit had to leave South Africa to apply for an immigration permit, facing a choice of either leaving alone or taking their South African family with them.
Constitutional Court’s Analysis in Dawood
- Absence of Explicit Right to Family Life: The Court noted that the South African Constitution does not explicitly protect the right to family life or cohabitation, but it meets international human rights obligations to protect the rights to marry and raise a family.
- Obligations Under International Conventions: South Africa’s ratification of various international conventions emphasizes the protection of family life, particularly in the context of children.
- Right to Dignity and Family Life: The Court highlighted that legislation impairing the ability of spouses to honor their marital obligations, including cohabitation, infringes on the right to dignity. This infringement is significant, especially when it leads to family separation.
- Limitation of Rights and Justifiability: The Court found that the statutory provisions in question limited the right to dignity and cohabitation of spouses. It emphasized the need to consider whether such limitations were justifiable.
- Legislative Omission and Constitutional Inconsistency: The Court concluded that the absence of legislative guidance on when a refusal to grant or extend a temporary permit is justifiable constituted an infringement of the right to dignity. This legislative omission rendered the provisions inconsistent with the Constitution.
Conclusion from Dawood
Impact on Current Case: The Dawood judgment is significant for the current case as it addresses similar issues related to the rights of foreign spouses and the impact of immigration laws on family life and human dignity. The principles established in Dawood provide a critical framework for assessing the constitutionality of the provisions under the Immigration Act concerning spousal visas.
The Nandutu Case and Its Implications
Background of Nandutu Case
Case Participants: In the Nandutu case, two married couples were involved, each consisting of a South African citizen or permanent resident and a foreign national. At least one couple had a child from their relationship.
Visa Applications and Rejections: The foreign spouses, who had initially entered South Africa legally on visitors’ visas, applied for spousal visas under section 11(6) of the Immigration Act. These visas would have allowed them to live in South Africa as long as their marriages or life partnerships were operational. However, their applications were rejected by the Director-General of the Department of Home Affairs.
Reasons for Visa Application Rejections
Regulatory Restrictions: The Director-General’s rejection was based on section 10(6) of the Immigration Act, which stipulated that holders of visitor’s visas could not apply to change their visa status from within South Africa. They were required to leave the country to apply for spousal visas.
Exceptional Circumstances Clause: Section 10(6)(b) allowed for exceptions in “exceptional circumstances as prescribed,” but Regulation 9(9)(a) did not include circumstances applicable to foreign holders of visitor’s visas who were spouses or life partners of South African citizens.
Constitutional Court’s Findings in Nandutu
- Limitation on Right to Dignity: The Court found that the statutory provisions imposed a limitation on the right to dignity. Families were forced to live apart while waiting for a decision on the application for a change of visa status. This separation interfered with marital rights and obligations, particularly cohabitation.
- Impact on South African Citizens and Children: The limitation extended to the right to dignity of the South African citizen or permanent resident spouse, as well as to the rights of children. The separation of families due to these visa regulations was seen as limiting the child’s best interests, as outlined in section 28 of the Constitution.
- Justifiability Analysis: The Court conducted a justifiability analysis as per 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.
Conclusion from Nandutu
Constitutional Infringement: The Nandutu case concluded that the provisions of the Aliens Control Act and the Immigration Act, as applied, constituted a limitation on the right to dignity of both the foreign national and the South African citizen, including any children involved. The Court highlighted the significant impact of these regulations on family life and the need to balance these against other rights and societal values.
Other Relevant Authorities and Their Implications
Booysen Case
Case Summary: In Booysen, similar to Dawood, a foreign national married to a South African citizen was required to apply for a work permit from outside South Africa. This requirement, as in Dawood, was found to unjustifiably limit the right to dignity and other fundamental rights.
Dladla Case
Case Summary: Dladla involved beneficiaries of the Blue Moonlight judgment living in accommodation provided by the City of Johannesburg with restrictive rules, including a family separation rule and a lockout rule. The Court found these rules to limit the right to dignity, freedom, security, and privacy. The family separation rule, in particular, was seen as limiting the right to human dignity and was not reasonable and justifiable in a democratic society.
Pridwin Case
Case Summary: In Pridwin, a school terminated an agreement with a child’s parents without giving the child or parents a chance to be heard, raising questions about the child’s right to basic education and the paramountcy of their best interests. The Court held that the school was obliged to afford the child an opportunity to be heard before terminating the agreement.
S v M Case
Case Summary: In S v M, the Court found that the sentencing courts failed to give sufficient attention to the impact on the children of sending their mother to prison, as required by the Constitution. This oversight was seen as a misdirection, and the Court reconsidered the appropriateness of the sentence.
Implications for the Current Case
Right to Dignity and Family Life: These cases collectively underscore the importance of the right to dignity and the protection of family life under the Constitution. They highlight the need for laws and policies to consider the impact on family units, especially where children are involved.
Constitutional Requirements: The judgments emphasize that any limitation on fundamental rights, such as the right to dignity and the best interests of the child, must be reasonable and justifiable in a democratic society. They also stress the importance of procedural fairness, especially in decisions affecting children’s welfare and education.
Relevance to Immigration Law: These cases are relevant to the current matter as they provide a framework for assessing the constitutionality of immigration laws and their impact on family life, particularly where one spouse is a foreign national. They suggest that immigration policies should be scrutinized to ensure they do not unjustifiably infringe upon the rights to dignity and family life.
Section 36 Analysis and the Case of Mr Tembo
Limitation of Rights: The Immigration Act limits several important rights, including the right to human dignity (encompassing family life), the right against unfair discrimination, and the right of a child to have their best interests considered in every matter affecting them.
Purpose of Limitation: The respondents did not provide a legitimate purpose for the provisions of the Immigration Act that require a foreign parent to leave South Africa to apply for a change of status or cease working when a spousal relationship ends.
Nature and Extent of Limitation: The limitations imposed by the Immigration Act are significant, affecting various fundamental rights entrenched in the Bill of Rights.
Relation Between Limitation and Purpose: No legitimate purpose was identified for these limitations, and the respondents did not suggest any.
Less Restrictive Means: Without a legitimate purpose for the limitations, the concept of less restrictive means to achieve the purpose does not apply.
The limitations imposed by the Immigration Act on the rights entrenched in the Bill of Rights are not reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. Therefore, the Act and its Regulations are inconsistent with the Constitution and invalid.
Background: Mr Tembo, a Zimbabwean national and boxing coach, entered South Africa illegally and had a child with a South African citizen. He was declared undesirable by the Director-General of the Department of Home Affairs without considering his child’s interests.
Legal Challenges and Outcomes:
- Approach with ‘Dirty Hands’: Mr Tembo approached the court with ‘dirty hands’ due to his repeated illegal entries into South Africa and long-term illegal stay.
- Failure to Exhaust Internal Remedies: He did not exhaust internal remedies, such as requesting the Minister to waive his undesirability status or appealing the Director-General’s decision.
- Court’s Decision: The High Court dismissed Mr Tembo’s application based on his illegal conduct and failure to exhaust internal remedies. The Constitutional Court upheld this decision and awarded costs against Mr Tembo, emphasizing disapproval of his illegal actions.
Conclusion: Mr Tembo’s application for leave to appeal against the High Court’s decision was dismissed with costs, as it was not in the interests of justice to entertain it due to his failure to exhaust internal remedies and his history of illegal conduct.
Remedy and Agreement Between Parties
Context of the Remedy
Narrowing of Disputes: Following the High Court judgment and subsequent referral to the Constitutional Court, the dispute between the parties narrowed significantly. The respondents largely conceded that the Immigration Act and its Regulations were inconsistent with the Constitution and invalid in substantial respects as contended by the applicants.
Agreed Terms for Remedy
- Section 18(2) Amendment: The parties agreed to amend Section 18(2) of the Immigration Act to allow a foreigner who is a parent of a South African child and is fulfilling or intends to fulfill parental responsibilities to work in the Republic for the full duration of the visa.
- Interim Reading-in to Section 11(6): There was agreement on an interim reading-in to Section 11(6) of the Immigration Act. This would deem visas of spouses who meet certain criteria valid until the outcome of an application for a new visa, provided an application is made within three months, even after the termination of the spousal relationship.
- Unnecessary Declarations and Readings-in: The parties agreed that certain declarations and readings-in by the High Court, such as those to Section 11(1)(b) and Regulation 11(4), were unnecessary and should not be confirmed.
- Agreement on Section 10(6)(a): It was agreed that an interim reading-in to Section 10(6)(a) was not necessary, provided the Court orders an interim reading-in to Regulation 9(9).
Remaining Disagreements
Despite significant progress, there were still areas of disagreement between the parties, particularly regarding the scope of the order of invalidity and the specifics of the reading-in required by the Court.
Joint Note of the Parties
The parties filed a joint note outlining their agreements and disagreements, along with separate draft orders reflecting each party’s position. The joint note served as a summary of the progress made in narrowing the issues and the remaining points of contention.
Remaining Disagreements and Final Order
Remaining Disagreements Between Parties
- Scope of Declaration of Invalidity:
- DHA’s View: The impugned provisions are unconstitutional only to the extent they require foreigners to cease working in South Africa and apply for status from outside the country.
- Applicants’ View: The Immigration Act is also invalid as it does not allow certain foreigners eligible for a relative’s visa under section 18(1) to work in South Africa.
- Scope of Interim Reading-in Orders:
- Respondents’ View: Interim reading-in orders should be limited to parents.
- Applicants’ View: Interim reading-in orders should also cover other holders of parental rights and responsibilities, with additional court order requirements for non-parents.
- Eligibility for New Visa Under Section 18(2):
- DHA’s View: Only former holders of a section 11(6) visa are eligible.
- Applicants’ View: Any foreigner meeting certain criteria should be eligible, regardless of prior status.
- Requirement to Demonstrate Need to Work:
- Applicants’ View: No need to demonstrate the necessity to work.
- DHA’s View: Extension should be available only to those demonstrating a need to work to fulfill parental responsibilities.
- Requirements for Regulation 9(9) Reading-in:
- Applicants’ View: No additional requirements necessary.
- DHA’s View: Only foreigners meeting specific criteria should benefit.
Constitutional Court’s Final Order
- Section 172 of the Constitution: The Court is obliged to declare any law or conduct inconsistent with the Constitution as invalid to the extent of its inconsistency. This includes regulations under an Act of Parliament.
- Suspension of Declaration of Invalidity: The parties agreed, and the Court concurred, that any declaration of invalidity should be suspended for 24 months to allow authorities to correct constitutional defects.
- Reading-in as a Remedy: The Court agreed that reading-in is an appropriate remedy in this case.
- Adoption of Applicants’ Draft Order: The Court adopted the order proposed by the applicants, with certain amendments. The order was not limited to persons previously issued with a section 11(6) spousal visitor’s visa but was extended to parents of a child who is a South African citizen or permanent resident.
- Exclusion of Other Categories: The Court declined to extend the order to guardians and other caregivers, as their cases were not adequately addressed in the affidavits and are not similarly situated to the applicants. The Court emphasized an incremental approach to visa and permit cases, as seen in previous judgments like Booysen, Dawood, and Nandutu.
- Future Cases: The Court noted that cases involving other categories of persons would be dealt with as and when they are brought before the courts.
Part A: Orders for All Applicants Except Mr T Tembo
- Appeal Upheld: The appeal by the applicants is upheld to the extent specified below.
- Declaration of Invalidity: Sections 10(6), 11(6), and 18(2) of the Immigration Act, and regulation 9(9)(a) of the Immigration Regulations, are declared inconsistent with the Constitution and invalid. This applies to the extent that they:
- Require a foreigner with a section 11(6) visa, who is a parent of a South African child and fulfilling or intending to fulfill parental responsibilities, to cease working or leave the Republic due to the end of a spousal relationship.
- Require a foreigner, who is a parent of a South African child, to leave the Republic to apply for a new visa.
- Do not allow a foreigner, eligible for a relative’s visa under section 18(1) and fulfilling or intending to fulfill parental responsibilities to a South African child, to work in South Africa.
- Suspension of Declarations: The declarations of invalidity are suspended for 24 months to allow Parliament and the first respondent to correct the constitutional defects.
- Interim Measures During Suspension:
- Section 11(6)(a) is deemed to read as specified, allowing certain foreigners to maintain visa validity pending new applications.
- Section 18(2) is deemed to allow certain foreigners to work in the Republic for the full duration of the visa.
- Regulation 9(9)(a) is deemed to include a new sub-regulation for parents of South African children.
- Finality of Reading-in: If the constitutional defects are not corrected within 24 months, the reading-in becomes final.
- Validity of Visas for Specific Applicants: The visas for Tereza Rayment, Thierry Gondran, Richard Anderson, and Joshua Ogada remain valid until their new status applications are determined.
- Costs: The respondents are to pay the applicants’ costs, including the costs of two counsel.
Part B: Orders for Mr T Tembo
- Refusal of Appeal: Mr T Tembo’s application for leave to appeal is refused with costs, including the costs of two counsel, to be paid by him in his personal capacity.
- Exclusion of Costs: The costs awarded do not include those related to Mr Tembo’s personal and representative capacities in a specific case.
Conclusion
The Court’s final order addresses the constitutional inconsistencies in the Immigration Act and its Regulations, providing interim measures to protect the rights of affected individuals, particularly parents of South African children. The order also ensures that specific applicants’ visas remain valid and addresses the costs associated with the applications. The refusal of Mr Tembo’s appeal and the associated costs highlight the Court’s stance on his case.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.
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