Unconstitutionality of Immigration Act Impacting Foreign Nationals' Parental Rights

Introduction: In a groundbreaking judgment on December 4, 2023, the Constitutional Court of South Africa in Rayment v Minister of Home Affairs [2023] ZACC 40 addressed the constitutional challenges posed by the Immigration Act, Act 13 of 2002, in the consolidated cases of Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others. This article delves into the core issues raised, the court's findings, and the resulting recommendations, shedding light on the far-reaching consequences for foreign nationals, particularly those with children who are South African citizens or permanent residents.

The requirement for foreign nationals to cease working or leave the country upon the expiration of their spousal visas is at the heart of this constitutional challenge. The affected applicants, who had been dutiful and supportive parents, found themselves in a vulnerable position, with their children's rights and their own rights to dignity compromised. The court's recognition of the lack of a legitimate purpose for such limitations underscores the unconstitutionality of the Immigration Act and its regulations.

Unconstitutionality of the South African Immigration Act: The essence of the legal battle revolves around the contention that the Immigration Act inadequately addresses the predicament of foreign nationals whose spousal visas expire upon the dissolution of marriages or good faith spousal relationships. This lapse in the law renders their stay in South Africa illegal, especially when children are part of the equation. The Constitutional Court identified specific sections of the Immigration Act, including 10(6), 11(6), and 18(2), along with regulation 9(9)(a), as inconsistent with the Constitution and thus declared them invalid.

Findings and Recommendations of the Constitutional Court: The court's ruling emphasizes the undue burden placed on foreign nationals, particularly parents of South African children, by requiring them to cease working or leave the country when their spousal relationships end. The identified sections of the Immigration Act were found to unjustifiably limit fundamental rights, including the right to dignity of the foreign national, the South African citizen or permanent resident spouse, and most critically, the child's rights under sections 21(3) and 28(2) of the Constitution.

As a remedy, the court suspended the declarations of invalidity for a period of 24 months. During this time, affected foreign nationals are permitted to continue working and residing in South Africa while applying for new visas. This interim measure provides breathing room for Parliament to amend the Immigration Act to align with constitutional principles and rectify the identified defects.

Conclusion: The cases of Rayment and Anderson underscore a common narrative where foreign nationals, having built lives and families in South Africa, face legal limbo upon the termination of their spousal relationships. The court's intervention acknowledges the intricate intersection of immigration laws and family dynamics, particularly concerning the rights of children. It is imperative to explore the implications of this ruling, especially for affected parties navigating the revised provisions during the 24-month suspension period.

 

 

Bisschoff NO obo Reyners v PRASA - Navigating Three Courts: Unravelling the Prescription Puzzle in Personal Injury Cases

Summary of Facts: The legal journey in the case of Bisschoff NO obo Reyners v PRASA [2023] ZASCA 160 involved a series of court proceedings. Reyners fell from a moving train operated by PRASA in 2001, resulting in severe head injuries. Subsequent surgical intervention led to traumatic brain damage, causing temporal lobe epilepsy, memory loss, aggression, personality changes, and a permanent loss of cognitive abilities and executive functioning. In 2010, years after the incident, Mr. Reyners initiated legal proceedings against PRASA. In 2013, a curator ad litem was appointed to assist him with legal affairs, and within the same year, the curator filed a summons against PRASA.

Trial Court Decision: The matter proceeded to the trial court where PRASA raised a special plea of prescription, asserting that Reyners' claim had prescribed, with prescription beginning from the date of the incident as per section 12(1) of the Prescription Act. The trial court held that the prescription period did not commence while Mr. Reyners was under a disability or impairment. Consequently, the trial court dismissed the special plea of prescription.

Full Court Appeal: PRASA appealed to the Full court, where the majority upheld the appeal. They substituted the order with one favouring PRASA, concluding that the special plea of prescription succeeded, resulting in the dismissal of the curator’s claim.

SCA Intervention: Undeterred, the curator appealed to the Supreme Court of Appeal (SCA). The SCA, however, took a different stance, overturning the decision of the Full court. The SCA criticized the majority of the Full court for assuming, in the face of uncontested expert evidence, that Mr. Reyners possessed the same cognitive abilities as a person without brain damage or disability. According to the SCA, this assumption led to a misdirection.

SCA's Assessment: The SCA emphasized that the majority of the Full court failed to acknowledge the impact of Mr. Reyners' complex attention and memory deficits. Despite having some residual capacity to engage with society, his ability to effectively utilize his intellectual capacity was hindered. The SCA highlighted the critical distinction between residual capacity and possessing the cognitive abilities required for legal action.

SCA's Verdict:  The SCA held that the majority of the Full court erred in their assessment and ruled in favour of Reyners, emphasizing that his disability persisted. Consequently, prescription, according to the SCA, began to run from the date of the curator ad litem's appointment.

Conclusion: The legal saga concluded with the SCA upholding the appeal, thereby overturning the Full court's decision. This case underscores the importance of considering the nuanced impact of cognitive impairment in determining prescription periods. The ruling establishes that, in cases involving cognitive deficits, the onset of prescription may be linked to the individual's ability to comprehend and act on legal matters post-disability rather than the date of the incident.