The Constitutional Court has ruled that legislation requiring foreign parents living in SA to reapply for visas from their home country in the event of separation or divorce from their local partner is unconstitutional and invalid.
In some cases the legislation has resulted in foreign parents having to leave their children in SA while the visa application is processed, which can take many months.
The Constitutional Court ruled such laws infringed a range of fundamental rights, including dignity and those of the children. It ordered parliament to amend the legislation within two years.
Writing for a unanimous court, chief Justice Raymond Zondo noted such laws, if not changed, could potentially “[tear] the family apart for months on end”.
Foreign spouses were often legally allowed to be in SA only because they were married to an SA national. In terms of the current law, if such a relationship ends, so does the foreign parent’s legal basis for remaining in the country.
The department of home affairs agreed the laws are unconstitutional.
All foreign parents in SA have been given more time to apply for permanent residency and won’t be forced to leave immediately should their marriage or partnership to a South African cease. Government was ordered to pay the parents’ legal costs
The case began in 2022 when a group of foreign parents successfully challenged the laws in the Cape Town high court. They all had been married to SA citizens and had a child.
One such parent is Tereza Rayment, a German-Czech national. She and her South African partner had two children and moved to SA in 2013 where they married. As a result of the marriage she obtained a “spousal” visa allowing her to live and work in SA. However, the relationship broke down in 2015 and the ex-husband moved out of the home leaving the children with her.
That put her status in SA in danger as the basis of her living and working in SA — marriage to a South African — no longer existed. The law required her to leave and apply for a different visa but that meant abandoning her children for months or removing them from the life they had known.
Rayment said she had been living outside Europe for so long that she would not have been able to find a job there. She therefore brought the challenge together with other foreigners in a similar position.
Zondo noted problems facing foreigners in the event their relationship with an SA national founders. “If [foreigners] do not live with such a person, they are in breach of the conditions of the spousal visa,” Zondo said.
“If they have a job in SA at the time of the termination of the marriage or the good faith spousal relationship, they are not allowed to continue working in SA.” If they do not, they “commit a criminal offence each day they remain in SA.”
Added to this, Zondo noted, is the foreigner being unable to work in SA — especially where they are the primary caregiver of children. The children “will be adversely affected” and “clearly limits not only the child’s right to human dignity but also the right to human dignity of the parents”.
Zondo also noted the importance of work visas.
In October, SA announced a scheme to expedite foreigners to work in the corporate sector, known as the Trusted Employer Scheme (TES). The plan would speed up employing foreigners who have much-needed critical skills. However, the scheme has yet to be implemented and would not have resolved the issue faced by parents who don’t qualify for the scheme.
The government was ordered to pay the parents’ legal costs.
Update: December 5 2023
This story contains additional information throughout
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