T.R and Others v Minister of Home Affairs and Others; R.W.A and Others v Minister of Home Affairs and Others (3919/20;12667/20) [2022] ZAWCHC 115; [2022] 3 All SA 918 (WCC); 2022 (5) SA 534 (WCC) (7 June 2022)

T.R and Others v Minister of Home Affairs and Others; R.W.A and Others v Minister of Home Affairs and Others (3919/20;12667/20) [2022] ZAWCHC 115; [2022] 3 All SA 918 (WCC); 2022 (5) SA 534 (WCC) (7 June 2022)

The court found that the Immigration Act and related regulations, to the extent that they require foreign parents who were holders of spousal visas to leave South Africa and cease working upon termination of their spousal relationships, unjustifiably limit the constitutional rights to dignity and parental care of both the parents and their South African children. The legislative scheme fails to give effect to the best interests of the child, as required by the Constitution and international instruments. The court held that the respondents did not demonstrate that the limitations imposed are reasonable and justifiable, nor that less restrictive means are unavailable. The impugned...

Citation
[2022] ZAWCHC 115
Parties
Applicant: T[....]1 R[....]1; Applicant: T[....]2 A[....]1 G[....]1; Applicant: T[....]4 T[....]5; Applicant: T[....]1 R[....]1 obo T[....]3 & J[....]1 R[....]1; Applicant: T[....]2 A[....]1 G[....]1 obo M[....]3 & E[....]2 G[....]1; Applicant: T[....]4 T[....]5 obo K[....] M[....]1; Applicant: R[....]2 W[....] A[....]2; Applicant: R[....]2 W[....] A[....]2 obo C[....] J[....]2 A[....]2; Applicant: J[....]3 O[....]1 O[....]2; Applicant: J[....]3 O[....]1 O[....]2 & T[....]6 E[....] B[....]1 obo M[....]2 W[....]2 O[....]2; Applicant: B[....]2 JE G[....]; Applicant: L[....]1 G[....]; Applicant: B[....]2 JE G[....] & L[....]1 G[....] obo L[....]2 G[....]; Respondent: Minister of Home Affairs; Respondent: Director-General, Dept of Home Affairs; Respondent: Deputy Director-General, Dept of Home Affairs; Respondent: National Dept of Home Affairs; Respondent: Dept of Home Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 June 2022
Case Number
3919/20;12667/20
Procedural Posture
Constitutional Application / Final Judgment
Outcome
The court declared the relevant provisions of the Immigration Act and regulations inconsistent with the Constitution and invalid, suspended the declaration for 24 months, ordered interim readings-in to allow affected foreign parents to apply for status and work visas from within South Africa, set aside the...
Judges
M Sher
Legal Topics
Immigration Status, Parental Responsibilities and Rights, Best Interests of the Child, Constitutional Invalidity, Reading in Remedy, Promotion of Administrative Justice Act
Constitutional Law Family and Children Administrative Law Immigration Status Parental Responsibilities and Rights Best Interests of the Child Constitutional Invalidity Reading in Remedy +1 more

Case Brief

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Parties

T[....]1 R[....]1

Applicant

T[....]2 A[....]1 G[....]1

Applicant

T[....]4 T[....]5

Applicant

T[....]1 R[....]1 obo T[....]3 & J[....]1 R[....]1

Applicant

T[....]2 A[....]1 G[....]1 obo M[....]3 & E[....]2 G[....]1

Applicant

T[....]4 T[....]5 obo K[....] M[....]1

Applicant

R[....]2 W[....] A[....]2

Applicant

R[....]2 W[....] A[....]2 obo C[....] J[....]2 A[....]2

Applicant

J[....]3 O[....]1 O[....]2

Applicant

J[....]3 O[....]1 O[....]2 & T[....]6 E[....] B[....]1 obo M[....]2 W[....]2 O[....]2

Applicant

B[....]2 JE G[....]

Applicant

L[....]1 G[....]

Applicant

B[....]2 JE G[....] & L[....]1 G[....] obo L[....]2 G[....]

Applicant

Minister of Home Affairs

Respondent

Director-General, Dept of Home Affairs

Respondent

Deputy Director-General, Dept of Home Affairs

Respondent

National Dept of Home Affairs

Respondent

Dept of Home Affairs

Respondent

Procedural Posture

Constitutional Application / Final Judgment

Legal Issues

  1. 1 Whether the Immigration Act and related regulations unjustifiably limit the constitutional rights of foreign parents and their South African children to dignity, equality, and parental care.
  2. 2 Whether the requirement for foreign parents to leave South Africa and cease working upon termination of a spousal relationship is constitutionally valid.
  3. 3 Whether the legislative scheme fails to give effect to the best interests of the child as required by the Constitution and international instruments.

Ratio Decidendi

The court found that the Immigration Act and related regulations, to the extent that they require foreign parents who were holders of spousal visas to leave South Africa and cease working upon termination of their spousal relationships, unjustifiably limit the constitutional rights to dignity and parental care of both the parents and their South African children. The legislative scheme fails to give effect to the best interests of the child, as required by the Constitution and international instruments. The court held that the respondents did not demonstrate that the limitations imposed are reasonable and justifiable, nor that less restrictive means are unavailable. The impugned...

Court Disposition

The court declared the relevant provisions of the Immigration Act and regulations inconsistent with the Constitution and invalid, suspended the declaration for 24 months, ordered interim readings-in to allow affected foreign parents to apply for status and work visas from within South Africa, set aside the...

Orders

  • It is declared that the Immigration Act and specified regulations are inconsistent with the Constitution and invalid to the extent that they require foreign parents of South African children to leave the country and cease working upon termination of a spousal relationship.
  • The declaration of invalidity is suspended for 24 months to allow Parliament to remedy the inconsistencies.