Dawood v Minister of Home Affairs | |
---|---|
![]() | |
Court | Constitutional Court of South Africa |
Full case name | Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others |
Decided | 7 June 2000 |
Docket nos. | CCT 35/99 |
Citations | [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 |
Case history | |
Prior actions | Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (1) SA 997 (C) in the High Court of South Africa, Cape of Good Hope Provincial Division |
Court membership | |
Judges sitting | Chaskalson P, Langa DP, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Yacoob J and Cameron AJ |
Case opinions | |
Decision by | O'Regan J (unanimous) |
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others is an important decision in South African constitutional law and immigration law. It was delivered in the Constitutional Court of South Africa on 7 June 2000. In a unanimous judgment written by Justice Kate O'Regan, the court held that the constitutional right to dignity contained implicit protections for the right to family life and the institution of marriage.
In particular, provisions of the Aliens Control Act, 1991 were found to be inconsistent with the right to dignity insofar as they permitted immigration officials wide discretion to refuse residence permits to the foreign spouses of South Africans, thereby undermining the ability of married couples to cohabitate. The court held that when Parliament grants government officials such powers and others that touch on constitutional rights, it must lay down proper guidelines for exercising those powers in compliance with the Constitution.
The six applicants were three married couples of mixed nationality: in each case, a South African had married a foreign spouse. Each foreign spouse sought to obtain an immigration permit which would permit them to reside permanently in South Africa in terms of the Aliens Control Act, 1991. They laid suit in the High Court of South Africa against the Minister of Home Affairs and proximate state officials, challenging the constitutionality of the immigration process as governed by that Act; their applications were heard together in the High Court's Cape Provincial Division.
Acting Judge Belinda van Heerden granted their applications, finding that section 25(9)(b) of the Aliens Control Act was unconstitutional and invalid. Although van Heerden noted that section 25(9) was not drafted clearly, she interpreted it as establishing a general rule that the Immigrants Selection Board (the state agency empowered to grant immigration permits) may grant immigration permanents only when the applicant is not in South Africa. Section 25(9)(a) created an exception to that general rule for applicants who possessed a valid work permit, and section 25(9)(b) created a further exception for spouses and dependents who possessed a valid temporary residence permit. Thus section 25(9)(b) permitted the foreign spouses to reside in South Africa while awaiting permanent immigration status, but only if and while they possessed a valid temporary residence permit. This created a situation in which mixed-nationality couples could be denied the right to cohabitate, because immigration officials retained the discretion to deny temporary residence permits to foreign spouses. Such a situation infringed unjustifiably on the constitutional right to dignity, which van Heerden held encompassed the right of spouses to cohabitate.
The Constitutional Court of South Africa was called upon to confirm the High Court's declaration of constitutional invalidity.
Though the applicants were represented by counsel including Wim Trengove, instructed by the Legal Resources Centre, the state respondents did not appear during the Constitutional Court's hearings: shortly before the hearing, they notified the court that they intended to withdraw their opposition to the applicants' application for confirmation. Writing on behalf of a unanimous court, Justice Kate O'Regan chastised the respondents. She described their withdrawal as "inconvenient and discourteous", [1] and their lack of representation as "much more serious" insofar as the court required the state's input in formulating any ancillary orders, even if the application itself was unopposed. [2] In the South African constitutional scheme, which "recognises the separation of powers, holds high the rule of law and enjoins all organs of State to protect the Constitution", the Constitutional Court has "the special and onerous responsibility" to determine the constitutionality of legislation, and the evidence and argument of government is indispensable in fulfilling this responsibility. [3]
The court held that, although the right to family life is not expressly mentioned in the South African Bill of Rights, it is implicitly protected by the section 10 right to human dignity. The right to dignity encompasses the right to enter into and sustain permanent intimate relationships, including marriage relationships, which are of defining significance for many people. The right to dignity is therefore limited by any legislation that prohibits the formation of marriage relationships and, moreover, by any legislation that significantly impairs the ability of spouses to honour their obligations to one another. A central aspect of marriage, O'Regan found, is cohabitation and the right and duty of spouses to live together, and enforced separation may strain and even destroy the marriage relationship. Legislation which significantly impairs the ability of spouses to cohabitate therefore constitutes a limitation on the right to dignity.
O'Regan agreed with the High Court that the Aliens Control Act impaired the ability of spouses to cohabitate. Section 25(9)(b) provided that, while awaiting a determination on their permanent immigration status, foreign spouses were permitted to reside in South Africa only if they had valid temporary residence permits, and section 26, which dealt with the award and extension of such permits, provided immigration officials with broad discretion to deny such permits to foreign spouses. If they were refused a temporary residence permit or the extension thereof, foreign spouses would be forced to leave South Africa, and the South African spouse would be forced either to follow them abroad or – particularly if they were poor – remain behind alone.
There may be, O'Regan conceded, constitutionally acceptable reasons for refusing the grant or extension of a temporary residence permit to a foreign spouse, but such reasons were not identified in the Act. This absence of explicit criteria introduced an element of arbitrariness that was inconsistent with the constitutional protection of the right to marry and establish a family. The legislature must identify the policy considerations that would render it justifiable to refuse a temporary residence permit. It must take care to limit the risk of an unconstitutional exercise of the discretionary powers it confers, as it has a constitutional obligation to "respect, promote, protect and fulfil the rights in the Bill of Rights".
Section 25(9)(b) was therefore found to be invalid, the invalidation being suspended for two years. In the meantime, the Constitution Court instructed immigration officials to take into account the constitutional rights of foreign spouses (and of other persons exempted under section 25(9)) when considering such individuals' applications for the granting or extension of temporary residence permits. Such individuals should be issued temporary residence permits unless good cause exists to refuse – for example, where even the temporary issue or extension of a permit would constitute a real threat to the public.
A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. Green card holders are formally known as lawful permanent residents (LPRs). As of 2023, there are an estimated 12.7 million green card holders, of whom 9 million are eligible to become United States citizens. Approximately 18,700 of them serve in the U.S. Armed Forces.
TN status is a special non-immigrant classification of foreign nationals in the United States, which offers expedited work authorization to a citizen of Canada or a national of Mexico. It was created as a result of provisions of the North American Free Trade Agreement that mandated simplified entry and employment permission for certain professionals from each of the three NAFTA member states in the other member states. The provisions of NAFTA relevant to TN status were then carried over almost verbatim to the United States–Mexico–Canada Agreement that replaced NAFTA in 2020.
Legal responses to agunah are civil legal remedies against a spouse who refuses to cooperate in the process of granting or receiving a Jewish legal divorce or "get".
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others, [2005] ZACC 19, is a landmark decision of the Constitutional Court of South Africa in which the court ruled unanimously that same-sex couples have a constitutional right to marry. The judgment, authored by Justice Albie Sachs and delivered on 1 December 2005, gave Parliament one year to pass the necessary legislation. As a result, the Civil Union Act came into force on 30 November 2006, making South Africa the fifth country in the world to recognise same-sex marriage.
The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title IV: Protecting the Border aims to prevent terrorism in the USA through immigration regulations. The provisions of the title generally increase the difficulty of entering the country for those known to have, or suspected of having, terrorist intent.
Visitors to the United States must obtain a visa from one of the U.S. diplomatic missions unless they are citizens of one of the visa-exempt or Visa Waiver Program countries.
This article summarizes the same-sex marriage laws of states in the United States. Via the case Obergefell v. Hodges on June 26, 2015, the Supreme Court of the United States legalized same-sex marriage in a decision that applies nationwide, with the exception of American Samoa and sovereign tribal nations.
South Africa experiences a relatively high influx of immigration annually. As of 2019, the number of immigrants entering the country continues to increase, the majority of whom are working residents and hold great influence over the continued presence of several sectors throughout South Africa. The demographic background of these migrant groups is very diverse, with many of the countries of origin belonging to nations throughout sub-saharan Africa. A portion of them have qualified as refugees since the 1990s.
Bhutanese nationality law is the law governing the acquisition, transmission and loss of Bhutanese citizenship. The Bhutanese Citizenship Act of 1985 was introduced by the Druk Gyalpo Jigme Singye Wangchuck, on June 10, 1985, modifying the definition of a Bhutanese citizen. The Act was implemented as part of a new national policy of Driglam Namzha, national customs and etiquette. Because of its emphasis on Bhutanese culture, the Act is also referred to as the "One Nation, One People Act." The 1985 Act was amended by the Immigration Act of 2007 and then superseded in 2008 by the Constitution of Bhutan insofar as previous laws are inconsistent; where not inconsistent, the provisions of the 2007 Act, the 1985 Act, and previous Acts relating to immigration continue in effect.
An Estonian temporary travel document is a travel document issued to an alien staying in Estonia for departure from and return to Estonia. A temporary travel document may be issued, without a standard application, to an alien who departs or is obliged to depart from Estonia without the right of return if he or she does not hold a valid travel document or a certificate of return issued by a foreign state. A temporary travel document for a single departure from and return to Estonia may be issued to an alien legally residing in Estonia if he or she does not hold a valid travel document and does not have the right to receive an alien’s passport. A temporary travel document does not grant the holder thereof the right to protection by a foreign mission of Estonia unless otherwise provided by law or a treaty. A temporary travel document shall be issued with a period of validity of up to two years.
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others, [1999] ZACC 17, is a 1999 decision of the Constitutional Court of South Africa which extended to same-sex partners the same benefits granted to spouses in the issuing of immigration permits. It was the first Constitutional Court case to deal with the recognition of same-sex partnerships, and also the first case in which a South African court adopted the remedy of "reading in" to correct an unconstitutional law. The case is of particular importance in the areas of civil procedure, immigration, and constitutional law and litigation.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
Daniels v Campbell NO and Others, an important case in South African family law and law of succession, was heard in the Constitutional Court on 6 November 2003 and decided on 11 March 2004. The court was unanimous that the constitutional right to equality requires that rights of intestate inheritance and maintenance must be extended to the surviving partners of de facto monogamous Muslim marriages, even though such marriages are not recognised under the Marriage Act, 1961.
Hassam v Jacobs NO and Others, an important case in South African family law and law of succession, was heard in the Constitutional Court of South Africa on 19 February 2009 and decided on 15 July 2009. It concerned the proprietary consequences of polygynous Muslim marriage in the context of intestate succession.
Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another was an important case in South African customary law.
Georgian nationality law is the organic law governing the acquisition, transmission and loss of Georgian citizenship.
Consular nonreviewability refers to the doctrine in immigration law in the United States where the visa decisions made by United States consular officers cannot be challenged in the United States judicial system. It is closely related to the plenary power doctrine that immunizes from judicial review the substantive immigration decisions of the United States Congress and the executive branch of the United States government.
Same-sex marriage is not legal in Namibia. On 16 May 2023, the Supreme Court ruled 4–1 that same-sex marriages concluded outside of Namibia should be recognised for residency purposes. However, a bill seeking to overturn the ruling passed the Parliament of Namibia in September 2023 and was signed into law by President Nangolo Mbumba in October 2024. It is unclear how the law, which activists and political advocates widely consider unconstitutional, will be enforced considering the Constitution of Namibia per court order guarantees the recognition of same-sex marriages performed abroad and the law is not a constitutional amendment and thus cannot actually overturn the Supreme Court ruling. The law also conflicts with Namibia's pre-colonial tolerance of sexual minorities.
Harksen v Lane NO and Others is an important decision of the Constitutional Court of South Africa, delivered on 7 October 1997. The court dismissed a challenge to the constitutionality of the Insolvency Act, 1936, finding that it was consistent with the right to property and right to equality for the property of a solvent spouse to be attached to the insolvent estate of his or her partner. Justice Richard Goldstone wrote for the majority.
Khumalo and Others v Holomisa is a landmark decision in the South African law of delict. It was decided by the Constitutional Court of South Africa on 21 May 2002. Handing down judgment for a unanimous court, Justice Kate O'Regan held that the existing common law of defamation is consistent with the Bill of Rights. The case emanated from a challenge by members of the press, who argued, in the main, that falsity should be an element of the delict of defamation in suits brought by public officials. However, the court rejected this argument, finding that existing common law does not impose an undue limitation on freedom of expression.