South Africa: Asylum Seeker Wins Right to Marry

Source: GroundUp, 23/02/2020

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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