South Africa like all other countries had to make urgent decisions relating to the closure of its borders and exceptions to the rule. Our government were obliged to consider its position to balance the spread of Covid-19 whilst at the same time give relief to its own citizens.

On the 27th of March 2020 our government declared a national disaster in terms of the Disaster Management Act and with that supporting subordinate laws were passed to give effect to various circumstances to allow South Africans and permanent residents to return to South Africa. In fact, other categories of foreigners were also given the right to be admitted into South Africa.

Sadly, one notable omission of persons, who could as of right enter South Africa, were those foreign spouses or even parents of South Africans abroad. Such group of persons were stuck abroad whilst their family were in South Africa.

What became striking is the fact that some categories of foreigners were expressly given the right to enter South Africa like foreign medical graduates seeking return to South Africa, diplomatic and their families, permanent residents and foreigners seeking urgent medical assistance.

SPOUSES AND PARENTS OF SOUTH AFRICAN CITIZENS

Craig Smith, the principal attorney, at Craig Smith & Associates have been contacted to assist those families who have been separated precisely because of the laws passed under the national disaster legislation.

The Constitution of South Africa protects the fundamental rights of all persons and in a matter where family are being separated against their will, such rights, like the rights to family life, protection of dignity and rights to be treated equally would immediately come to the support of such families.

CONSTITUTION AND THE LOCKDOWN LAWS

Since the rights under the Constitution clearly come to the protection of family and their rights to dignity and equal protection under the law are formidable in relation to the lockdown laws that would have to pass the constitutional test in order to remain valid.

Craig Smith & Associates have taken the position that our Constitution trumps the prevailing lockdown laws by preventing families or spouses of South African citizens the right to international travel and return to South Africa to reunite with their families.

MINISTER OF HOME AFFAIRS – THE DISASTER MANAGEMENT DIRECTIONS

The Minister of Home Affairs has issued laws to assist various groups to return to South Africa. This list of persons extends to South African citizens, permanent residents and a mix of foreign persons for various reasons.

Unfortunately, the Minister of Home Affairs failed to account for South African families, and whilst, the said Minister issued the latest Direction 23, he failed to appreciate its limitations and restrictive application.

The fact remains that family members of South Africans are not being adequately recognised and it is time to enforce their rights under our Constitution that have been marginalised by our government and in this case the Minister of Home Affairs.

LEGAL PROCEEDINGS AGAINST DEPARTMENT OF HOME AFFAIRS

Without going into the merits of Direction 23 and the Disaster Management Regulations in terms of Regulations 41 and 16(5) it is our considered view that the Minister of Home Affairs ought to be compelled in terms of our Constitution to revise and extend the ambit of those Directions, specifically Direction 17B,  to expressly permit foreigners who are the spouses or parents to reunite with their South African family.

Craig Smith & Associates has therefore launched legal proceedings in the high courts to compel the express recognition of the foreign spouses and parents of such South Africans.

Without such legal proceedings, Direction 23 would remain an obstacle to return to South Africa. It is our view that the Department of Home Affairs has misconstrued the underlying purpose of combatting and preventing the spread of Covid-19 by limiting international travel from high risk countries like Germany and France but yet fails to apply such restrictions to countries like Brazil and Chile where the Covid-19 crisis is rampant and totally out of control.

CONCLUSION 

Without the ability to approach the courts to enforce the constitutional rights of dignity, family life and rights of equal treatment, foreign spouses and parents of South Africans will continue to face the brunt of limited and short-sighted unconstitutional laws. 

CRAIG STANFORD SMITH
CRAIG SMITH & ASSOCIATES

Cape Town

Craig Smith

Contact Details
(021) 418 3810
craig@migrationlawyers.co.za

Physical Address
40 Pepper Street
Cape Town, 8000

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