Nandutu and Others v Minister of Home Affairs and Others (11440/17) [2018] ZAWCHC 47; [2018] 3 All SA 259 (WCC) (18 April 2018)

Nandutu and Others v Minister of Home Affairs and Others (11440/17) [2018] ZAWCHC 47; [2018] 3 All SA 259 (WCC) (18 April 2018)

The court held that Regulation 9(9)(a) of the Immigration Regulations is not inconsistent with the Constitution. The distinction between section 11(1) visitor’s visa holders and accompanying spouses or children of holders of work or business visas is rational and justified by the need for health, social, economic,...

Source-derived case information.

Citation
[2018] ZAWCHC 47
Parties
Applicant: Robinha Sarah Nandutu; Applicant: James Ferrior Tomlinson; Applicant: Ilias Demerlis; Applicant: Christakis Fokas Ttofalli; Respondent: Minister of Home Affairs; Respondent: Director-General, Department of Home Affairs; Respondent: VFS Visa Processing (SA) (Pty) Ltd t/a VFS Global
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 April 2018
Case Number
11440/17
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Application dismissed. Leave granted to apply for waiver and submit spousal visa applications.
Judges
Thulare
Legal Topics
Immigration Act, Regulation 9 9 a, Right to Dignity, Right to Equality, Waiver of Prescribed Requirements, Spousal Visa
Constitutional Law Administrative Law Immigration Act Regulation 9 9 a Right to Dignity Right to Equality Waiver of Prescribed Requirements Spousal Visa

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Robinha Sarah Nandutu

Applicant

James Ferrior Tomlinson

Applicant

Ilias Demerlis

Applicant

Christakis Fokas Ttofalli

Applicant

Minister of Home Affairs

Respondent

Director-General, Department of Home Affairs

Respondent

VFS Visa Processing (SA) (Pty) Ltd t/a VFS Global

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether Regulation 9(9)(a) of the Immigration Regulations is inconsistent with sections 9 and 10 of the Constitution and therefore invalid.
  2. 2 Whether the rights of foreign spouses or children of citizens or permanent residents are unjustifiably limited by the prohibition on change of status while in the Republic.
  3. 3 What is the appropriate remedy if the regulation is found to be unconstitutional.

Ratio Decidendi

The court held that Regulation 9(9)(a) of the Immigration Regulations is not inconsistent with the Constitution. The distinction between section 11(1) visitor’s visa holders and accompanying spouses or children of holders of work or business visas is rational and justified by the need for health, social, economic, and security risk assessments at the time of admission. The applicants failed to comply with the prescribed requirements for a spousal visa and did not apply for a waiver under section 31(2)(c) of the Immigration Act. The regulation does not create an absolute bar to change of status applications; rather, the Minister retains discretion to waive prescribed requirements for good...

Court Disposition

Application dismissed. Leave granted to apply for waiver and submit spousal visa applications.

Orders

  • The application is dismissed.
  • First and third applicants are granted leave to submit their applications in terms of section 31(2)(c) of the Act to the Minister, for good cause, to consider waiving the requirement as prescribed in Regulation 9(9) within 30 days of the date of this order or within such longer period as the Minister may determine.