L Mzalisi NO & others v Emmanuel Paulking Oche Ochogwu & another

The first respondent, a Nigerian national, arrived in South Africa in 2011 as an asylum seeker fleeing attacks by Boko Haram. He held an asylum seeker temporary permit under section 22(1) of the Refugees Act 130 of 1998, which entitled him to live, work and study in South Africa. His asylum application was rejected by a Refugee Status Determination Officer, and his appeal had been pending before the Refugees Appeal Board for approximately seven years. In September 2015, he married the second respondent, a South African citizen, under customary law, and they had a child born in June 2016. In August 2016, the respondents sought to register their customary marriage under the Recognition of Customary Marriages Act 120 of 1998 and to contract a civil marriage under the Marriage Act 25 of 1961 at the Department of Home Affairs in Port Elizabeth. Initially all documentation was in order. However, in February 2017, they were informed they could not marry because Circular No. 4 of 2016, issued by the Deputy Director-General for Civic Services on 12 September 2016, prohibited asylum seekers from marrying. Specifically, paragraph 2.1(b)(iii)(dd) of the circular stated that refugees 'whose asylum seeker application status is pending cannot contemplate marriage'. The respondents challenged the validity of this provision in the Eastern Cape Division of the High Court, Port Elizabeth.

• Whether the respondents instituted valid review proceedings despite not requesting a record of decision or explicitly canvassing review grounds
• Whether a structural interdict was warranted in the circumstances
• Whether Circular No. 4 of 2016 was susceptible to judicial review
• Whether paragraph 2.1(b)(iii)(dd) of Circular No. 4 of 2016 was invalid and unconstitutional
• Whether asylum seekers pending determination of their status are entitled to marry in South Africa
• Whether the respondents were competent to contract a civil marriage while their customary marriage subsisted under section 10 of the Recognition of Customary Marriages Act
• Whether punitive costs were appropriate given the conduct of the appellants

The appeal was dismissed with costs on the scale as between attorney and client. The order of the high court was amended by: (1) deleting in its entirety the structural interdict appended to paragraph (v) of the order; and (2) deleting paragraph (vii) of the order in its entirety. The high court's declaration that paragraph 2.1(b)(iii)(dd) of Circular No. 4 of 2016 was inconsistent with the Constitution and invalid, and the orders declaring the respondents entitled to enter into a civil marriage and to register their customary marriage, were upheld.

The binding legal principles established are: (1) Asylum seekers lawfully residing in South Africa under section 22(1) permits issued under the Refugees Act, pending determination of their asylum applications, are entitled to marry in South Africa. (2) Administrative circulars and directives, even where not statutorily envisaged, are susceptible to judicial review where they are treated as binding by officials charged with implementing them and affect legal rights. (3) Administrative measures that impose absolute prohibitions on asylum seekers marrying while their applications are pending are invalid as they violate constitutional rights to dignity (section 10) and personal liberty (section 12), and are inconsistent with the principle that human dignity has no nationality. (4) Contradictory or ambiguous provisions in administrative circulars that cannot be reasonably construed to protect fundamental rights must be declared unlawful and invalid. (5) Under section 10 of the Recognition of Customary Marriages Act, parties to a subsisting customary marriage are competent to contract a civil marriage under the Marriage Act, and the heading of the section does not override the clear wording of the provision. (6) State litigants have heightened constitutional duties of fairness, candour, honesty and respect when dealing with rights, and failure to meet these standards may warrant punitive costs orders.

The court made several notable obiter observations. It noted that South Africa has become one of the most attractive destinations for asylum seekers globally, with approximately 200,000 appeals pending before the Refugees Appeal Board, illustrating systemic backlog issues. The court observed that marriage remains central to human self-definition, liberty, autonomy and dignity, and offers 'a social and legal shrine for love and for commitment', quoting extensively from Fourie v Minister of Home Affairs. The court emphasized that the right to family life is 'not a coincidental consequence of human dignity, but rather a core ingredient of it', citing Nandutu. While declining to rule definitively (as it was unnecessary on the facts), the court noted the academic debate about whether administrative directives are reviewable under PAJA or the principle of legality, referencing the Constitutional Court's decision in Ahmed to leave this question open. The court noted with concern that the high court's failure to award costs despite the respondents' success appeared to be an inadvertent omission (per incuriam) rather than a deliberate exercise of discretion, but acknowledged it could not remedy this without a cross-appeal per Shatz Investments. The court also observed that the respondents were 'extremely fortunate' that no order was sought requiring the appellants to pay costs personally (de bonis propriis) given the egregious nature of their conduct.

This case is significant in South African law for several reasons. First, it affirms that asylum seekers lawfully residing in South Africa pending determination of their asylum applications have the right to marry, and administrative circulars that impose absolute bans on such marriages are unconstitutional and invalid. Second, it clarifies that departmental circulars and directives, even when not statutorily envisaged, are susceptible to judicial review when they are treated as binding by officials and affect rights, following the principle in Ahmed v Minister of Home Affairs. Third, it emphasizes the constitutional rights to human dignity and family life extend to non-citizens, including asylum seekers, reinforcing that 'human dignity has no nationality' as stated in Watchenuka. Fourth, it reiterates the heightened duties of State litigants to be fair, honest, candid and respectful when dealing with rights, and demonstrates willingness of courts to impose punitive costs where State conduct falls below constitutional standards. Fifth, it provides guidance on when structural interdicts are appropriate and the need for judicial discretion to be exercised judiciously with reasons. The case has important implications for refugee and asylum seeker rights in South Africa, particularly given South Africa's position as one of the world's leading destinations for asylum seekers.