A case was brought by asylum seeker Emmanuel Ochogwu, whose
application for refugee status has been pending with the Refugee
Appeal Board for over six years. He is a Christian pastor who fled
the religious persecution of Boko Haram in Nigeria.
During the prolonged delay in finalising his application, Ochogwu
formed a relationship with Zizipho Nkumanda. The two married in
terms of customary law. In 2016, they approached Home Affairs to
register their customary marriage in terms of the Recognition of
Customary Marriages Act and conclude a civil marriage under the
Marriage Act. This is a practice commonly adopted by customary law
spouses to ensure full legal recognition of their union.
The parties were asked to prove the existence of the customary
marriage and provide Ochogwu`s asylum permit for verification.
They complied, providing an affidavit from Nkumanda`s father,
confirming the conclusion of a customary marriage and Ochogwu`s
latest asylum seeker permit.
On Valentine`s Day 14 February 2017, the couple returned to Home
Affairs to finalise their marriage. But Home Affairs indicated
that a recently published circular from the Deputy Director for
Civic Services prohibited the marriages for asylum seekers whose
applications for asylum were not finalised.
Dismayed, the couple approached the Eastern Cape Division High
Court for relief.
High Court
The couple argued that the circular was an unconstitutional
infringement of their rights to equality and dignity. Also, they
argued that the circular infringed international law treaties on
the rights of asylum seekers. These international laws, which
South Africa has signed and ratified, expressly prohibit the
prejudicial conduct of Home Affairs.
Highlighting the unreasonableness of Home Affairs`s conduct, the
couple pointed out that the Refugee Appeal Board had been defunct
for two years, resulting in Ochogwu waiting for a decision for
over five years.
Home Affairs argued that the applicants should wait for a decision
by the Refugee Appeal Board. Also, they argued that the applicants
marriage was fraudulent to secure residency rights for Ochogwu.
But Home Affairs provided no evidence for this.
After considering the arguments, the High Court concluded that the
circular infringed the applicants` rights to equality and was
therefore unconstitutional. The court ordered that the parties
should be allowed to marry. The respondents appealed.
Supreme Court of Appeal
The SCA considered two main issues. First, the legal status of the
Home Affairs circular. Second, whether the ban on marriage for
asylum seekers was unconstitutional.
Home Affairs argued that a circular is not a law and therefore the
court cannot review it. But the court said that a circular is
meant to guide officials in implementing government policy. The
SCA noted that a similar argument had been used in the case of
Ahmed v Minister of Home Affairs. The Constitutional Court in

that
case rejected the argument stating that it was not important to
decide whether a circular was a law or not. What was important,
the Constitutional Court concluded, was whether it was treated as
a law by those responsible for implementing it. Put differently,
if Home Affairs used the circular to give or deprive people of
their rights (as laws do), then the court can review it.
The advocate representing Home Affairs argued that considering the
circular as a whole, it did not bar asylum seekers from getting
married. The words of the circular, he said, affirmed the right of
asylum seekers to marry but only sought to guide marriage officers
in concluding marriages and prevent marriages involving
undocumented immigrants.
The SCA disagreed. The court took particular note of the sections
of the circular that read: `refugees whose asylum application is
pending cannot contemplate marriage` and `should there be an
inquiry to a refugee or asylum seeker status, the marriage cannot
be concluded`. The SCA concluded that these sections clearly deny
asylum seekers the right to marry. Also, the court said, an
interpretation that denied Ochogwu the right to marry is how the
circular was understood by Home Affairs officials.
The SCA said that all interpretations of fundamental rights, such
as the right to equality, must acknowledge the constitutional
value of dignity. The court found it unacceptable that the wording
of the circular was contradictory -- the circular affirmed the
right of asylum seekers to marry in one sentence, only to deny the
right in the next. The court quoted the judgment of Minister of
Home Affairs v Watchenuka, where the Constitutional Court stated
`human dignity has no nationality`.
The SCA referred to judgments of the Constitutional Court that
speak to the importance of marriage as a social institution for
the expression of one`s dignity and autonomy - `it offers a social
and legal shrine for love and for commitment and for a future
shared with another human being`.
Court rebukes Home Affairs
The SCA`s conclusion also included a scathing rebuke of Home
Affairs. The court said that judicial precedent required the state
to respect the law, to fulfil procedural requirements and to tread
respectfully when dealing with rights. The court found Home
Affairs had failed dismally to achieve these constitutional
imperatives. The court described Home Affairs`s conduct as
`inexcusable and deserving of censure`. It said that Home Affairs
officials were lucky to not have been called upon to personally
pay the costs of litigation.
The court took particular exception to Home Affairs questioning
the legitimacy of the couple`s marital relationship
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There are fears that more people will be separated by the introduction of a minimum salary level for those wanting UK family visas. Families living in the UK and abroad have raised concerns about what new rules will mean for them as they try to reunite with foreign spouses. In December, the Home Office, which says migration to the UK is too high, announced a package of measures to reduce net migration, following a spike in arrival numbers. V.5318
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EREMY MAGGS: I want to stay with crime now. Individuals with a criminal record may be faced with significant challenges when seeking employment, I think that’s a given. Here in South Africa, employers may legally exclude an applicant from consideration for a position if having a clean criminal record is what is termed an inherent requirement of the job. That phrase, inherent requirement, is important, but what exactly does that mean, and when can an applicant be lawfully excluded for having a criminal record? V.5321
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Home Affairs’ seemingly endless court battles set the department back more than R110-million between April 2023 and the end of February this year. This was revealed in a written parliamentary response by minister Aaron Motsoaledi. He said the department accumulated a litigation bill of R117 692 996.3, higher than the R72 637 944.51 spent the year before. V.5315
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Airports Company South Africa (ACSA) this week revealed that Cape Town International Airport (CTIA) has achieved a ground-breaking milestone by processing more than 10 million passengers over a single financial year. This is the highest number of regional and international passengers processed since COVID-19 V.5316
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In recent years, South Africa has seen a significant influx of immigrants from various African countries, as well as other parts of the world. This has raised important questions about the country`s immigration policies and their impact on job creation for both locals and immigrants. The South African immigration system, like many other countries, is a complex and ever-evolving process that aims to balance the country`s economic needs with its social and cultural interests. Let`s take a closer look at how this system intersects with job creation in South Africa. The South African government implemented the Immigration Act of 2002, which outlines the country`s immigration policies and procedures. Under this act, foreigners are required to obtain a visa or permit to enter, work, or study in South Africa. The type of visa or permit required depends on the intended purpose of the individual`s visit and their country of origin. V.5312
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Due to system downtime and load-shedding, the Department of Home Affairs (DHA) lost nearly 141,000 hours of Smart ID application and production time between the 2019/20 and 2022/23 financial years. Minister Aaron Motsoaledi revealed this figure in a recent response to questions raised in Parliament by Democratic Alliance MP Adrian Roos. Motsoaledi provided a breakdown of smart ID production and application hours lost to technical difficulties and load-shedding per province for each financial year from 2019/2020. These disruptions hit home Affairs offices in the Eastern Cape the hardest, with over 34,000 hours to rotational power cuts and system downtime. Mpumalanga offices lost the next-highest number of hours at 17 V.5313
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Home Affairs Minister Dr Aaron Motsoaledi has said the public has shown great support for the final White Paper on citizenship, immigration and refugee protection which appeared in the Government Gazette on Wednesday. Briefing the media, he addressed what he saw as a long-overdue need to replace an outdated Citizenship Act, as well as enact proposed changes to existing legislation. V.5306
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