Constitutional Court gives state two years to amend foreign
spousal visa laws
Immigration attorney acted for the applicants in their appeal to
the highest court in the land.
He explains that while the minister now has two years to change
the regulations, in the meanwhile, the missing exceptional
circumstances for foreign spouses and children of South Africans
must be ``read` into the appropriate regulation.
Any foreign spouse or minor child of a South African person is
affected - whoever comes into South Africa on a visitor visa may
now change status within the country instead of having to
laboriously and at great expense return to their countries of
origin to do so.
From the moment that Constitutional Court order was handed down -
a week ago, last Friday - we give the minister 24 months to
actually write that language in and to make a set of
constitutionally compliant regulations..

On 28 June 2019 at 10h00, the Constitutional Court handed down
judgment in an application for direct leave to appeal against a
decision of the High Court, Western Cape Division, Cape Town (High
Court). The applicants sought to have regulation 9(9)(a) of the
Immigration Regulations declared unconstitutional on the basis
that it limits the constitutional right to dignity by limiting the
rights of persons to marry and cohabit, and the best interests of
children by limiting their rights to family care.

This matter involved two different family units, each of which
comprises a foreign spouse who is married to or is in a life
partnership with a South African citizen or permanent resident.
The first applicant, Ms Nandutu, is a Ugandan citizen who resides
with and is married to the second applicant, Mr Tomlinson, a South
African permanent resident. The third applicant, Mr Demerlis, is
a Greek citizen, who resides with and is in a life partnership
with the fourth applicant, Mr Ttofalli, a South African citizen.

Ms Nandutu entered South Africa on a temporary visitor’s visa that
was issued under section 11(1) of the Immigration Act (Act). At
the time of entering South Africa, she was pregnant with Mr
Tomlinson’s child. Several months later, Ms Nandutu married Mr
Tomlinson and gave birth to their son. In order to be able to
remain in South Africa with her husband and son, Ms Nandutu
applied for a “spousal visa” under section 11(6) of the Act. Her
application was rejected on the basis that in terms of section
10(6) of the Act, temporary visa holders are not able to apply for
a change in visa status from within South Africa, and must make
those applications from outside South Africa.

The majority judgment, penned by Mhlantla J and concurred in by
Cameron J, Jafta J, Khampepe J, Madlanga J, Nicholls AJ and Theron
J, allowed the applicants to

appeal directly to the Constitutional
Court. The majority declared regulation 9(9)(a) invalid and
inconsistent with the Constitution, in that it unjustifiably
limits the constitutional right to dignity and the right that a
child’s best interests are paramount in every matter concerning
the child. The majority relied on the Constitutional Court’s
previous judgment in Dawood. In that case, the Court dealt with a
legislative regime that required foreign spouses to have valid
temporary residence permits in order to apply for immigration
permits that would allow them to reside permanently in South
Africa. The legislation required that an applicant be outside the
country at the time of the grant of an immigration permit. The
legislation also created an exception to this in relation to,
amongst others, spouses and dependent children. An applicant also
had to be the holder of a valid temporary residence permit right
up to the time of the grant of the immigration permit. A
difficulty arose from the fact that the issuing of this temporary
residence permit was subject to the exercise of a discretion by
immigration officials. And this the Court held to be
unconstitutional as there was no legislative guidance on how the
discretion was to be exercised. Also, the Court held the entire
regime to be constitutionally invalid, as it unjustifiably limited
the right to dignity by creating an onerous burden on families who
would have to separate as a result. This, the Court found,
created practical and physical barriers to the enjoyment of one’s
familial rights (and, by extension, one’s human dignity), and also
obstructed a spouse’s ability to carry out fundamental aspects of
their spousal obligations and the ability to live together.
Relying on this Dawood holding, the majority in this matter
concluded that regulation 9(9)(a) limited the right to dignity and
right that a child’s best interests are paramount in every matter
concerning the child.

Accordingly, the majority declared regulation 9(9)(a)
constitutionally invalid, suspended the declaration of invalidity
for 24 months and ordered a reading-in on an interim basis of
words that have the effect of adding to the exceptions under the
regulation spouses or children of South African citizens or
permanent residents. The effect of this reading-in was that,
during the period of suspension, spouses or children of South
African citizens or permanent residents would not have to depart
from South Africa when applying for a change in visa status.

www.samigration.com V.2909

One of the highlighted topics: Critical Skills Visa.

- Key Insight: Is your profession on the Critical Skills List? This visa is your fast track to working in South Afr...
- This matter relates to critical skills visa and its broader implications.
- Individuals are advised to seek professional guidance.

Is your profession on the Critical Skills List? This visa is your fast trac V.6139
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One of the applicants, Phindile Mazibuko, became a victim of identity theft in 2012 when fraudulent transactions occurred, using her personal details.

-The Pretoria High Court found that the department of home affairs had violated constitutional rights without due process.
-Only half of Lawyers for Human Rights` test group has been unblocked, while 385 000 identities remain blocked nationwide.
-LHR appeals extension, urges affected people to seek help now.

Lawyers for Human Rights (LHR) are intensifying pressure on the department of home affairs over the national ID-blocking crisis, accusing the state of acting too slowly to unblock qualifying individuals despite a landmark court ruling.

In January last year, the Pretoria High Court found that the department`s practice of blocking IDs without due process was unlawful and unconstitutional. One of the applicants, Phindile Mazibuko, a Swati citizen and South African permanent resident since 1998, fell victim to identity theft in 2012 when fraudsters used her personal details.

 V.6133
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The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

What does this mean for travelers? V.6128
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The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

What does this mean for travelers? V.6129
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A Washington state mother and her 6-year-old son have been released after spending more than three weeks in US immigration detention due to a brief trip to Canada and a small paperwork mistake, her attorney told CNN on Saturday.

Sarah Shaw, a New Zealand citizen who has lived legally in the US since she arrived in 2021, was detained at the Blaine, Washington, Customs and Border Protection checkpoint when returning home after dropping her two oldest children off at the Vancouver airport for a flight to visit their grandparents in New Zealand. Shaw, 33, chose the flight out of Vancouver because it was direct and she didn`t want her children to have to navigate a layover alone, her attorney Minda Thorward, told CNN.

 V.6130
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On 22 July 2025, the Gauteng High Court dismissed Sitrusrand Boerdery`s review of the Department of Employment and Labour`s refusal to issue a Working Conditions and Salary Benchmarking Certificate, an essential precondition for obtaining corporate visas under the Immigration Act.

Acting Judge Kekana AJ held that the Department`s decision was lawful, rational and procedurally fair. This judgment illustrates how businesses can - and must - structure their corporate visa applications to meet statutory requirements, and how legal practitioners should prepare robust review challenges when administrative authorities decline to recommend foreign-work permits.

 V.6131
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The United States could forfeit an estimated 9.4 billion dollars in visitor spending over the next three years following the introduction of a new 250 dollars `visa integrity fee,` according to industry groups, who warn the policy risks undermining tourism and costing thousands of jobs.
The United States’ decision to introduce a 250 dollars `visa integrity fee` on international visitors has triggered sharp criticism from the global tourism industry, with officials warning that the measure could deter millions of travellers and cost the U.S. economy billions.
The 250dollar `visa integrity fee,` part of the One Big Beautiful Bill Act signed on July 4, 2025, will take effect later this year. According to immigration law firm Envoy Global, it applies to all nonimmigrant visa holders which include students, tourists, temporary workers, and business visitors particularly from African countries. V.6132
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The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

What does this mean for travelers? V.6127
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1. Right to Legal Representation•You have the right to consult with a legal representative.•Contact an immigration practitioner, legal aid clinic, or attorney urgently.•Do not sign any documents without understanding them fully. 2. Section 34 of the Immigration Act•You must be brought to court with 48 hours to confirm arrest but you can remain locked up very long as courts figure out what to do with you •If you`re found to be illegally in South Africa, you may be detained for up to 30 days (extendable by a magistrate) pending deportation.•BUT this cannot happen arbitrarily. You must be informed of your rights, and Home Affairs must follow due process.- becomes a nightmare , you could lose your job , business , place to stay V.6121
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Driving for Bolt, Uber, Mr D, or Checkers Sixty60?If you`re undocumented, you`re risking more than just your income.The Risks if You`re Not Legal: - Vehicle impoundment - Heavy fines - Arrest & deportation - Permanent bans from working in SA V.6122
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