The case examined the constitutional right of spouses to cohabit and the need for Parliament, when granting government officials powers that touch on constitutional rights, to lay down proper guidelines. The Court noted that there was no automatic entitlement to such temporary permits. Each application was considered on its merits and the grant or extension of a temporary residence permit to a foreign spouse may be refused. The South African spouse was then forced to go abroad with the foreign spouse or remain behind alone pending the outcome of the application. Many were too poor to have this choice and had to remain in South Africa without their spouses.
The right to enter into and sustain permanent intimate relationships was held to be part of the right to dignity. Entering into and sustaining a marriage relationship were of defining significance for many people. Not only legislation that prohibits the right to form a marriage relationship infringes the right to dignity; any legislation that significantly impaired the ability of spouses to honour their obligations to one another would also limit such a right.
Family law; constitutional law; marriage; right to marry and right to family life; dignity
The applicants in this case were South African citizens and their spouses, who were neither citizens nor permanent residents of South Africa. Section 25(9) of the Aliens Control Act required applicants for immigration permits to be outside South Africa when their permits are granted but exempts spouses, permanent same-sex life partners, dependant children and destitute, aged or infirm family members of South African citizens and permanent residents: they may remain in the country pending the outcome of their applications provided they have valid temporary residence permits.
The court held that this legislative scheme was inconsistent with the right to dignity in s 10 of the Constitution. A central aspect of marriage was cohabitation and the right and duty to live together. Legislation that significantly impaired the ability to honour this obligation constituted a limitation of the right to dignity. There may be constitutionally acceptable reasons for refusing the grant or extension of a temporary residence permit, but they are not identified in the Act. The legislature should identify the policy considerations that would render a refusal of a temporary residence permit justifiable. It must take care to limit the risk of an unconstitutional exercise of the discretionary powers it confers, as it has a constitutional obligation to “respect, promote, protect and fulfil the rights in the Bill of Rights”. The omission from the Aliens Control Act of criteria relevant to a refusal to grant or extend temporary residence permits introduced an element of arbitrariness that was inconsistent with the constitutional protection of the right to marry and establish a family.
Section 25(9)(b) is therefore invalid, the invalidation being suspended for two years. In the meantime officials, when dealing with applications for the granting or extension of temporary residence permits of spouses of South African citizens or permanent residents and the other persons exempted, must take into account the constitutional rights of such people and issue or extend temporary residence permits to them unless good cause exists to refuse, for example where even the temporary issue or extension of a permit would constitute a real threat to the public.
The appeal was upheld. Section 25(9)(b) read with sections 26(3) and (6) of the Aliens Control Act 96 of 1991 (the Act) was declared to be inconsistent with the Constitution. The declaration was suspended for a period of twenty-four (24) months from the date of the order to enable Parliament to correct the inconsistency.
Enforced separation places strain on any relationship and may destroy the marriage relationship altogether. Although the right to family life was not expressly mentioned in the Bill of Rights, such right was constitutionally protected. Also, human dignity - entrenched in section 10 of the Bill of Rights - was of fundamental importance to our society and our constitutional interpretation, especially because of our past where it was routinely and cruelly denied. Human dignity was a foundational value which informed the interpretation of many, perhaps all, other rights.