[1] This is an application in terms of section 172(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (the Constitution) to declare as invalid and inconsistent with the Constitution, Regulation 9(9)(a) of the Immigration Regulations (regulations) issued in terms of section 7 of the Immigration Act, 2002, (the Act) to the extent that the rights accorded by means of the exceptional circumstances contemplated in section 10(6)(b) of the Act are not extended to the foreign spouse or child of a citizen or permanent resident. The application is opposed by the first and second respondents.

[2] The remedy requested by the applicants is that this court exercise its powers in terms of section 172(1)(b) of the Constitution by reading in the words:

“(iii) is the spouse or child of a citizen or permanent resident”.

This, it is submitted, is in order to render Regulation 9(9)(a) valid and consistent with the Constitution.

[3] The constitutional challenge is based on the duty of the parties in a marriage or life partnership to cohabit and to provide each other with support. The fact that the foreign spouse of a citizen or permanent resident who holds a visitor’s visa is not exempted from the prohibition to apply for a change of status while in the Republic, it is argued, impairs the ability of the spouse to honour that obligation and is therefore an unjustifiable limitation of the right to dignity. It is further argued that the fact that the foreign accompanying spouse or child of the holder of a work or business visa is exempted, but not the holder of a visitor’s visa, is an unjustifiable limitation on the right to equality.

Read the full judgment here on Saflii