Nandutu and Others v Minister of Home Affairs and Others

The first applicant, a Ugandan citizen, entered South Africa on a visitor's visa and married the second applicant, a British permanent resident. After marrying, she applied for a section 11(6) spousal visa to reside with her husband and child, but the application was rejected because regulation 9(9)(a) of the Immigration Regulations did not extend "exceptional circumstances" permitting a change of visa status from within South Africa to foreign spouses or children of South African citizens or permanent residents. The third applicant, a Greek citizen in a life partnership with the fourth applicant, a South African citizen, faced similar rejection. Both foreign applicants were required to leave South Africa to apply for a change of visa status, forcing separation from their families. The applicants challenged the constitutional validity of regulation 9(9)(a), arguing it unjustifiably limited their right to dignity and the rights of children by requiring family separation.

• Whether regulation 9(9)(a) of the Immigration Regulations is constitutionally invalid for not extending exceptional circumstances to foreign spouses or children of South African citizens or permanent residents
• Whether a change from a section 11(1) visitor's visa to a section 11(6) spousal visa constitutes a change of visa status
• Whether regulation 9(9)(a) limits the right to dignity and the rights of children as protected by the Constitution
• Whether section 31(2)(c) of the Immigration Act prevents any infringement of constitutional rights by enabling applicants to apply for a waiver
• Whether any limitation of constitutional rights is reasonable and justifiable under section 36 of the Constitution

1. Leave to appeal is granted. 2. The appeal is upheld. 3. Regulation 9(9)(a) of the Immigration Regulations is declared inconsistent with the Constitution and invalid to the extent that exceptional circumstances under section 10(6)(b) of the Immigration Act are not extended to foreign spouses or children of South African citizens or permanent residents. 4. The declaration of invalidity is suspended for 24 months. 5. During suspension, the following is read into regulation 9(9)(a): '(iii) is the spouse or child of a South African citizen or permanent resident.' 6. If the defect is not remedied within 24 months, the interim reading-in becomes final. 7. Ms Robinah Sarah Nandutu is granted leave to submit a visa application pursuant to section 11(6) of the Immigration Act. 8. The Minister of Home Affairs and Director-General to pay the applicants' costs, including costs of two counsel, in both the High Court and Constitutional Court.

Regulation 9(9)(a) of the Immigration Regulations is constitutionally invalid to the extent that it does not extend exceptional circumstances permitting applications for change of visa status from within South Africa to foreign spouses or children of South African citizens or permanent residents. Requiring such persons to leave South Africa to apply for a change from a section 11(1) visitor's visa to a section 11(6) spousal visa constitutes a limitation of the right to dignity under section 10 of the Constitution and children's rights under section 28, as it forces family separation and impairs the ability of spouses to cohabit and fulfill marital obligations. This limitation is not reasonable and justifiable under section 36 of the Constitution, as the government failed to establish a proportionate relationship between the limitation and its purported purposes of border security and preventing fraud. Section 31(2)(c) of the Immigration Act does not provide an alternative remedy because the Minister can only waive requirements prescribed by regulation, not those imposed by the Act itself. A change from a section 11(1) visitor's visa to a section 11(6) spousal visa constitutes a change of visa status because the two visas create different rights, conditions, and obligations for visa holders.

The Court noted that while South Africa as a sovereign state is entitled to regulate who enters its borders and what requirements they must meet, this entitlement must be exercised consistently with constitutional rights. The Court observed that the respondents were capable of conducting proper investigations to detect fraudulent marriages when visa applicants are within the country, as they had done effectively before the 2014 legislative amendments. The Court emphasized that the family unit and spousal relationships are social institutions of vital importance. The majority judgment did not extensively discuss whether the first applicant should be held to her initial choice of entering on a section 11(1) visitor's visa rather than applying for a section 11(6) spousal visa from the outset, though the High Court had criticized this. Froneman J's dissenting judgment cautioned that the case should be distinguished from Dawood, which concerned unfettered discretion rather than absolute prohibitions, and that visitors have no constitutional expectation to enter, remain, or reside in South Africa. The dissent suggested that absent evidence of danger or serious prejudice from returning home, temporary separation for visa processing may not constitute a dignity violation.

This case is significant for affirming the constitutional protection of family life and dignity in the context of immigration law. It extends the principles established in Dawood v Minister of Home Affairs by finding that requiring all foreign spouses and children of citizens or permanent residents holding visitor's visas to leave South Africa to apply for visa status changes constitutes an unjustifiable limitation of constitutional rights. The judgment reinforces that immigration regulations must accommodate familial relationships and cannot impose blanket requirements that force family separation without proper justification. It demonstrates the Court's willingness to use interim reading-in remedies to balance immediate constitutional relief with respect for parliamentary legislative authority. The case has wide-ranging implications for how immigration policy must account for the constitutional rights of both South African citizens/residents and their foreign family members, particularly regarding the right to cohabit and the best interests of children.