On 4 December 2023, the South African Constitutional Court delivered a unanimous judgment on two consolidated matters: the Tereza Rayment and Richard Anderson applications. The applicants, foreign nationals previously in marriages or relationships with South African citizens, filed applications in both their personal and representative capacities as parents. Respondents included the Minister of Home Affairs and officials from the Department of Home Affairs.
All applicants had children with their South African partners, but the relationships ended, resulting in challenges to certain provisions of the Immigration Act. The Act required foreign nationals to leave South Africa and apply for a visa status change from outside the country when the marriage or relationship ended. This created hardships, including loss of employment and potential separation from their children. Applicants argued that this infringed on their rights to dignity and family life, as well as the children’s rights under section 28(2) of the Constitution.
The Court upheld the contentions by the applicants that the Immigration Act was inconsistent with the Constitution and, therefore, invalid to the extent that it precluded a person in the applicants’ position from working in South Africa or carrying on business in South Africa upon the termination of a marriage to or of a good faith spousal relationship with, a South Africa citizen. In reaching this conclusion, this Court followed established precedents such as Dawood and Nandutu. The Court could not find any justification for the limitation or infringement of these fundamental rights. Accordingly, a declaratory order was to be made.
One applicant, Mr Tapiwo Tembo, was previously declared an undesirable person after entering South Africa illegally. His application for a review of this decision was dismissed by the High Court and later by the Constitutional Court due to the “dirty hands” principle and failure to exhaust internal remedies. The Chief Justice adjusted the High Court’s flawed order and suspended the declaration of invalidity for two years.
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Read the Constitutional Court’s full MEDIA SUMMARY
Read the JUDGEMENT
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