Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others

The case consolidated three applications involving foreign spouses married to South African citizens or permanent residents who sought to reside lawfully in South Africa while their applications for permanent residence (immigration permits) were pending. Under the Aliens Control Act 96 of 1991, foreign nationals required valid temporary residence permits to be in South Africa, and section 25(9)(b) allowed immigration permits to be granted to spouses only if they held valid temporary permits at the time of decision. In practice, the Department of Home Affairs often refused or failed to extend temporary permits, requiring spouses to leave the country and apply from abroad. In addition, high non‑refundable fees were imposed by regulation for immigration permit applications. The applicants argued that these provisions and practices unjustifiably interfered with their constitutional rights, particularly the right to dignity and family life.

The Constitutional Court confirmed the declaration that section 25(9)(b) of the Aliens Control Act was unconstitutional, with the order of invalidity suspended for a period to allow Parliament to cure the defect. Interim relief granted by the High Court allowing spouses to remain in South Africa pending immigration decisions was left intact. The confirmation order took effect subject to the suspension.

This is a leading Constitutional Court decision on the protection of family life and dignity in the context of immigration control. It established that immigration legislation and administrative discretion must be structured and guided so as not to unjustifiably interfere with the ability of spouses to live together. The case significantly influenced later immigration legislation, including the Immigration Act 13 of 2002, by requiring clearer statutory safeguards and constitutionally compliant discretion.