The first respondent, a Nigerian national, entered South Africa in 2011 as an asylum seeker and held a valid asylum seeker permit under s 22 of the Refugees Act 130 of 1998. His asylum application was refused, but an appeal to the Refugee Appeal Board had been pending for several years. In September 2015 he concluded a customary marriage with the second respondent, a South African citizen, and they had a child together. In 2016 the respondents sought to register their customary marriage under the Recognition of Customary Marriages Act 120 of 1998 and to conclude a civil marriage under the Marriage Act 25 of 1961. Although they initially complied with departmental requirements, officials of the Department of Home Affairs later refused to register or solemnise the marriage, relying on paragraph 2.1(b)(iii)(dd) of Departmental Circular No 4 of 2016, which was interpreted as barring asylum seekers whose status was pending from marrying. The respondents challenged the validity of this paragraph in the High Court, which declared it unconstitutional and invalid and granted further relief. The Department of Home Affairs appealed to the Supreme Court of Appeal.