Rights of a foreign parent with a child as a citizen of South Africa
A foreigner’s immigration status is determined by the relevant visa or permanent residence permit and the rights and obligations related to it, as granted to them in terms of the Act. Applications were consolidated and brought in the Western Cape High Court, seeking orders declaring the Act or certain sections thereof to be inconsistent with the Constitution, especially when read together with certain of the Immigration Regulations which were promulgated in terms thereof. These sections were deemed inconsistent to the extent that they require foreigners who are parents and caregivers of SA children to cease working and leave the country when their spousal relationships with their SA spouses come to an end, or when they no longer co-habit together. The spousal visa that is in issue, provided for in the Act, affords temporary residence and it was held by the Constitutional Court in Nandutu v Minister of Home Affairs 2019 (5) SA that the nature of the rights and conditions attached to the spousal visa are different from an ordinary visitor’s visa in the sense that it intends to offer a foreign spouse a permanent route to a permanent residence permit provided that the foreigner has been the spouse of an SA citizen for 5 years. However, such permit will lapse if at any time within a period of 2 years from the date of issue the spousal relationship ceases. At this point, the foreign resident is to depart from SA, failing which they will be considered illegal foreigners and be deported. The Act is unclear, however, as to how it is to be determined that a spousal relationship has ended. The Honourable Justice Sher pointed out that: “The applicants contend that the legislative provisions in question are unconstitutional inasmuch as their effect is to unjustifiably limit their constitutional rights and those of their children, to dignity and equality, and to parental care and legislative processes that give effect to the best interests of the children”. The Applicants also claimed that being forced to cease working in SA and undergoing deportation not only have a financial impact on their children but also in terms of their development and emotional wellbeing. Sher further explored the Constitutional Court’s decision in the Nandutu matter, in which it was stated that marriage and family were social institutions of ‘vital importance’ and went further to say that marriage imposed moral and legal obligations on both spouses including a duty of support and cohabitation, as well as joint responsibility for supporting and raising children born from it. As our Courts always consider the best interest of the child, Sher further considered the Children’s Act 38 of 2005 and the African Charter on the Rights and Welfare of the Child, adopted by the OAU in 1990 and adopted by SA in November 1999, stating that: “both these instruments recognize the right and dignity of children and their parents and that the interest of the child shall be primary consideration as well as that a child is not to be separated from their parents against their will except when necessary”. In these circumstances, foreign parents are faced with a very difficult situation, to either break the law by continuing to live and work in SA to maintain their responsibilities and relationship with their children or abide the law and leave the country and risk failing to uphold their duties as parents. An order was made that the declaration of invalidity is suspended for a period of 24 months, in order to afford Parliament the necessary time to remedy the inconsistencies with the Act and in the interim certain provisions to be read-in to the Act. Should Parliament not remedy same, the readings-in shall become final. Reference List: Immigration Act 13 of 2002. WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others. WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Positive and Helpful Amendments to the Domestic Violence Act 1998
The Domestic Violence Amendment Bill (the Bill) was introduced in the National Assembly in September 2020 but has yet to be signed into law by the President. There are various positive and helpful amendments presented in the bill. The Bill will come into operation on a date fixed by the President through the proclamation in the Gazette. The concept and definition of domestic violence has been broadened extensively in the Bill. It now includes spiritual abuse, elder abuse, coercive behaviours, controlling behaviour, and exposing or subjecting children to behaviour listed in the domestic violence definitions clause. It also makes provision for conduct that harms, or inspires the reasonable belief that harm may be caused to the Complainant or a related person. Some of the amendments in the Bill are summarised below: Elder abuse, sexual harassment, and spiritual abuse has now been defined Elder abuse refers to abusive behaviour in a relationship with an older person and can include financial abuse, physical abuse, emotional abuse, as well as controlling behaviours like social isolation or intentional and unintentional neglect. It unfortunately happens frequently that parents invite their children to live with them and after a short while elder abuse commences. The Bill aims to provide the necessary protection to the elderly. ‘Sexual harassment is a separate section under ‘Sexual abuse’ and inter alia means: Unwelcome sexual attention from a person who knows or ought to reasonably know that such attention is unwelcome; Unwelcome suggestions, gestures messages and remarks; Implied and expressed promises or reward for complying with a sexually oriented request. There have also been various court cases recently where pastors, priests, and other religious leaders have been charged with inter alia, rape and or sexual assault and invariably it happens that over a period of time there has been the use of spiritual or beliefs and practices to control and dominate a person. An interdict can now be obtained as soon as there has been spiritual abuse. Duty to report commission of domestic violence. It is an offence should a person fail to report his / her knowledge that an act of domestic violence has been committed against a child, person with a disability or an elderly person. Arrest by peace officer A peace officer may, without a warrant, arrest any person at the scene of an incident of domestic violence, and may enter the premises where an element of violence has allegedly been committed during an incident of domestic violence without a warrant. Positive duty on those in the health care and education sector. The Bill places a positive duty on those in the health and education sector to screen, counsel, and provide emergency medical treatment to a victim. Online application and service An application may be brought by submitting an online affidavit as prescribed, and may be brought outside ordinary court hours if the court has a reasonable belief that the complainant may suffer harm. The interim protection order may be served by the clerk of the Court electronically. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)