Two foreigners married to South Africans can remain in the country with their families for now after the Constitutional Court told the Department of Home Affairs it cannot appeal a temporary High Court order.
The court ruled on Tuesday on the department's application for leave to appeal a Western Cape High Court decision granting temporary relief to two families separated by a new immigration regulation that came into effect at the end of May last year.
The foreign spouses of Brent Johnson and Cherene Delorie were stranded outside South Africa after being refused re-entry and declared "undesirable".
Delorie’s Zimbabwean husband, David Henderson, was declared an undesirable person after leaving South Africa - where he has lived for seven years - to travel to Zimbabwe on May 28 last year, while Johnson’s Danish wife, Louise Egedal-Johnson, was declared an undesirable person after a family holiday to Namibia the same month.
Both their temporary residence permits had lapsed and the fact that they were declared undesirable prevented them, under the new regulations, from getting new temporary permits.
Egedal-Johnson was stranded outside the country together with the couple's baby and Henderson was separated from his wife and two children.
The two families' applications for relief were heard together because the cases were similar. Both claim that the new immigration regulations regarding declaring people undesirable are unconstitutional.
The Western Cape High Court ordered that Henderson and Egedal-Johnson be allowed back into South Africa until their application to have the regulations declared invalid is heard.
The Department of Home Affairs then asked the Constitutional Court for leave to appeal against the High Court order, arguing that the High Court invaded its executive authority by, among other things, “creating a precedent that allows for internal remedies under the Immigration Act to be bypassed".
The Constitutional Court, however, found that the order was only temporary and did not finally dispose of any factual or legal issues.
“The temporary relief granted was specifically directed at Mrs Johnson and Mr Henderson and there was no general suspension of the new legal dispensation in respect of other persons,” the court held.
Craig Smith, lawyer for both families, said both Henderson and Egedal-Johnson returned to the country after the High Court ruling and expressed their satisfaction with the Constitutional Court's ruling.
Smith said a date was yet to be set for the Western Cape High Court to hear the challenge to the validity of the regulations.
If the parties succeed in having it declared invalid, it will require the department to go "back to the drawing board” to redraft it, Smith said.
He said the new regulations impinged on foreigners’ rights.
“Many people have been separated as a result of the new law,” he said.
What God has joined together Home affairs should not put asunder ooooooo
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