Constitutional Court Bid to Allow Mom Legal SA Status

In 2015 the woman, whose name has been withheld to protect the identity of her son, was three months pregnant when she entered South Africa on a three-month visitor’s visa, to wed her boyfriend.

The couple, and their now four-year-old child, live in the Western Cape. But her future is under threat because the government deems her to be “illegal”.

And, the only way she can change this under current laws, is to go back to Uganda, hand over her passport, in order to apply for a spousal visa, and wait.

Her son’s birth in August of 2015 remains unregistered. He has no identity number and no passport. In essence, he doesn’t officially “exist” and cannot travel with her.

But the woman, with the assistance of her attorney Gary Eisenberg, is fighting back and her case will be the first on the Constitutional Court’s agenda this year when it considers the constitutionality of laws which prevent her from applying for a spousal visa while in South Africa.

She - and a Greek national in a similar situation - want the apex court to overturn a ruling by Cape Town acting Judge Daniel Thulare, who said they should have applied for a “spousal” visa from the start and subjected themselves to the health, economic and security risk assessments.

“When she made a conscious choice, in respect of which fruit to pluck from the tree of democratic RSA visas, she cannot be heard to complain of the taste,” Judge Thulare said.

“She seeks the benefits of a spousal visa without complying with the requirements of one.

“Such action has a tendency to make a marriage of a foreigner in South Africa a loophole for criminals and their syndicates to avoid detection, to expose the Republic to attack and to health risks,” he said.

In written argument before the court, her lawyer said that she could not apply for a spousal visa at the time because she was not married.

And, if she is forced to apply for the visa from Uganda, it could take years.

“In that time the harm to and violation of the rights in the marriage will be severe….and will not be in the best interests of her child.”

The lawyers in the two cases said their clients had made every attempt to regulate their status in South Africa and suggestions that “people who come to South Africa with a plan to marry are acting fraudulently” were unwarranted and untrue.

There was no reason why the required screening could not be done here. In the meantime, for the past three years their clients has been facing the threat of deportation, could not work, open bank accounts, get a driver's licence or work.

Both clients, they said, “live in constant angst”.

The application is opposed by the Minister and Director General of the Department of Home Affairs.

Acting Chief Director (for permits) Ronney Marhule said: “We deny the act and the regulations limit the right to dignity. The applicants knew, when they entered South Africa on a visitor’s visa, that they did not have the right to permanent residence and should have been aware that, after the expiry of the visa, they would be required to leave.”

Marhule says a spousal visa is “more onerous” and it is important to conduct all the necessary checks and investigations before it is granted.

Any change to this would be “drastic” because it would mean people could enter on a visitor’s visa - where there are few checks and balances - and then be entitled to stay beyond the three-month period on the basis of an alleged spousal relationship.

“When this was previously allowed, it led to widespread fraud and abuse of the system,” he said.

The court will hear the matter on February 21.

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