Nandutu and Others v Minister of Home Affairs and Others

The applicants were foreign nationals married to or in permanent life partnerships with South African citizens or permanent residents. They entered South Africa on visitor’s visas and subsequently sought to change their visa status to spousal visas under section 11(6) of the Immigration Act. Regulation 9(9)(a) of the Immigration Regulations limited ‘exceptional circumstances’ permitting a change of visa status from within South Africa and did not include foreign spouses or children of citizens or permanent residents. As a result, their applications were rejected on the basis that they were required to leave South Africa to apply from abroad. This separation adversely affected family life, dignity, and the interests of children. The High Court dismissed their constitutional challenge, prompting a direct appeal to the Constitutional Court.

Leave to appeal was granted and the appeal upheld. Regulation 9(9)(a) was declared unconstitutional and invalid to the extent that it excluded foreign spouses or children of South African citizens or permanent residents. The declaration of invalidity was suspended for 24 months, during which an interim reading-in was ordered. The Minister and Director-General were ordered to pay costs, and specific relief was granted allowing Ms Nandutu to apply for a visa from within South Africa.

This case affirms the constitutional protection of family life and dignity in the context of immigration control. It limits the state’s ability to enforce rigid immigration rules that cause family separation and clarifies that discretionary administrative remedies cannot substitute for constitutionally compliant legislation. The judgment has broad implications for immigration policy affecting mixed-nationality families in South Africa.