Mzalisi NO and Others v E O and Another (630/2018) [2019] ZASCA 138; 2020 (3) SA 83 (SCA) (1 October 2019)

Mzalisi NO and Others v E O and Another (630/2018) [2019] ZASCA 138; 2020 (3) SA 83 (SCA) (1 October 2019)

The Supreme Court of Appeal held that paragraph 2.1(b)(iii)(dd) of Circular No. 4 of 2016, as applied by the Department of Home Affairs, unlawfully barred asylum seekers from marrying or registering customary marriages, infringing their constitutional rights to dignity and equality. The circular was treated as binding by officials and thus susceptible to judicial review. The impugned paragraph was vague, contradictory, and inconsistent with both the Constitution and South Africa's international obligations. The structural interdict granted by the high court was set aside due to lack of factual foundation and judicial misdirection. The court further clarified that section 10 of the...

Citation
[2019] ZASCA 138
Parties
Appellant: L Mzalisi NO; Appellant: Director-General of Department of Home Affairs NO; Appellant: Minister of Home Affairs NO; Appellant: Deputy Director-General for Civic Services NO; Respondent: E O; Respondent: Z N
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 October 2019
Case Number
630/2018
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division of the High Court, Port Elizabeth
Outcome
Appeal dismissed with costs on an attorney and client scale. The structural interdict and paragraph (vii) of the high court order are deleted.
Judges
Petse, Tshiqi, Wallis, Mbha, Dlodlo
Legal Topics
Right to Marry, Customary Marriage Registration, Departmental Circular Review, Equality Clause, Human Dignity, Structural Interdict
Constitutional Law Civil Procedure Family and Children Right to Marry Customary Marriage Registration Departmental Circular Review Equality Clause Human Dignity +1 more

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Parties

L Mzalisi NO

Appellant

Director-General of Department of Home Affairs NO

Appellant

Minister of Home Affairs NO

Appellant

Deputy Director-General for Civic Services NO

Appellant

E O

Respondent

Z N

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division of the High Court, Port Elizabeth

Legal Issues

  1. 1 Whether paragraph 2.1(b)(iii)(dd) of Circular No. 4 of 2016 lawfully bars asylum seekers from marrying or registering customary marriages.
  2. 2 Whether the circular is susceptible to judicial review.
  3. 3 Whether a structural interdict was warranted against the Department of Home Affairs.

Ratio Decidendi

The Supreme Court of Appeal held that paragraph 2.1(b)(iii)(dd) of Circular No. 4 of 2016, as applied by the Department of Home Affairs, unlawfully barred asylum seekers from marrying or registering customary marriages, infringing their constitutional rights to dignity and equality. The circular was treated as binding by officials and thus susceptible to judicial review. The impugned paragraph was vague, contradictory, and inconsistent with both the Constitution and South Africa's international obligations. The structural interdict granted by the high court was set aside due to lack of factual foundation and judicial misdirection. The court further clarified that section 10 of the...

Court Disposition

Appeal dismissed with costs on an attorney and client scale. The structural interdict and paragraph (vii) of the high court order are deleted.

Orders

  • The appeal is dismissed with costs on the scale as between attorney and client.
  • The structural interdict appended to paragraph (v) of the order is deleted in its entirety.