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 emphasises 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.

We struggle to secure payslips or a schedule – and in an 11-hour shift I barely have time for a bathroom break
There is no one at reception when I arrive at the hotel in a small town about 50km from Dublin, so I go to the bar and, as instructed, ask for the duty manager. “Miša, do you know where James is?” the young waiter calls to a passing colleague – in Slovak.
I had been interviewed online for the hotel cleaning job I applied for through an agency back in my home country, the Czech Republic. Did I mind that the hotel was in a secluded location with nothing to do in the evening, they’d asked me in the interview. I’d said no, that I like solitude. Now I am being shown around the hotel and the kitchen, where I meet the cook and two other guys – all of them Slovaks. Just as I was surrounded by Poles while on the farm in Germany, here I feel I could be in Slovakia. The cook, taking a break, tells me that it is his last day. I ask if he is leaving because of the low pay. He breathes in slowly and says that he’s leaving because of the stress.
Speak English!
At 8.30am the following day, I am teamed up with two female colleagues, Nina, 19, and Veronika, 20, to start work on the bedrooms.
I go to the second floor to help Veronika, who is also my roommate in the cramped staff hostel. Veronika tells me more than once not to spend so much time on bed-making, that the beds look nice already. “It’s not your bed. It’s good enough,” she says.
At one point during our shift I manage to lose both Nina and Veronika. On finding them again I blurt out, in Slovak: “I couldn’t find you!”. “In English!” one of the managers, who is in the vicinity, shouts so loudly that I jump. Considering Veronika knows even less English than I do, it seems completely absurd to communicate in English.
Hotel cleaner in Ireland (Limits of Europe, dir Apolena Rychlíková, Hypermarket film) – video
In the back yard, after her shift, Veronika sighs: “I shouldn’t have come back here.” She worked at the hotel for five months last year, and she got talked into returning. The hotel promised to pay her more than the minimum wage, but that promise was broken. And the workload didn’t get better, it got worse. “There used to be five people in housekeeping here, we could handle it, but you can’t do it with two people,” she complains. She says she came back “because of the money” as she can’t make any in Slovakia and doesn’t want to be a burden on her parents.
I work for 11 hours, but it feels like 20
I ask my colleagues about contracts. “They won’t give you a contract. I had to pressure them for two and a half months to give me one. And I couldn’t get a PPS number the entire time, so they kept taking 40% of my earnings [in tax]. The first pay cheque was €315!” Veronika says. Until a worker has an Irish personal public service (PPS) number the state takes emergency tax and social insurance, which you claim back later. But you can’t get a PPS without a contract.
I meet Sára in the back yard. She is a quiet 21-year-old from central Slovakia. She had wanted to work in the kitchen, but the management put her on reception because her English is good.
As shifts go, today is terrible, really terrible. Nina is off so I end up working for 11 hours, but it feels like 20. I barely stop for a second, I don’t go to the bathroom, I don’t have time for a drink of water, nothing. Before now, I never would have believed it was possible to create such a hell in which we feel compelled to work as hard as this the entire day, even without a supervisor watching us.
From 9 am we are going: cleaning the toilets next to reception, then we each get our bedroom lists. I start on the first of my rooms: clean the bathroom; change the beds; dust the furniture; refill the soap, body wash and shampoos, tea, coffee, milk; wash the cups. Veronika, working on the second floor, keeps texting me on WhatsApp, which we are supposed to monitor all the time: come on, come on, just do it, we have a lot to do.
There’s less than 10 minutes for us to eat lunch.
Back on duty, Veronika is yelling at me for not going fast enough or making mistakes in the rush. Lifting the heavy mattresses, I cry tears of rage and exhaustion. She is totally stressed that we aren’t keeping up, and she curses the hotel for putting us under such pressure.
When we eventually finish the bedrooms we are told to clean the dining room, then set the tables for breakfast.
Suddenly, Sára comes running over to say a guest has complained: his room has not been cleaned. I missed one. When I get back to the uncleaned room I find an angry Veronika, already on the case. She screams at me that I am completely stupid. Later, I go back to the dining area, realising that as my hours are not recorded anywhere (I am not yet logged in to the hotel’s fingerprint-based ID system) I am basically working for free. I finish after 8pm – two hours later than my official finishing time.
I am so tired that I don’t eat and instead of dinner I walk to the petrol station 2km away for a can of beer. We are not allowed to buy beer in the hotel. The bosses can see us coming and going via CCTV in the hallway of the shabby hostel where we sleep.
Later, Veronika sends a WhatsApp: “Sorry about today. I’m really sorry, I was just overworked. I hope you understand. I don’t want us to fall out.” And a smiley face.
If they want to screw me, they’ll screw me
I start to get used to the routine. But I do something to my shoulder lifting those heavy mattresses. Maybe I really am too old for this job, as the woman at the Slovak-run job agency had hinted when I was looking for hotel work. I’m 45. I could handle it if there was more time, but things are organised in such a way that it is impossible.
When it looks as if there won’t be much work on a given day, staff are told they can have it off. Not everyone is happy with that as we are only paid for the hours worked.
There’s a lot of ambiguity about payslips, and colleagues say if I leave the job early I won’t get paid at all. Nina has been crying because she got paid so little in the last round. She is exhausted but hasn’t kept track of her hours. No one here seems to keep a record of the actual hours worked. Mikuláš, a nice young waiter whose ambition it is to have an organic farm, says: “Why would I? If they want to screw me, they’ll screw me.”
The hours change all the time, but the system is clear: they pay us for as few hours as they can get away with
The next evening, I meet Sará in the back yard. She is totally down, saying she should have stayed in Slovakia and worked for €4 an hour there, rather than put up with what she has to do here in Ireland.
She has come here with her boyfriend Sebastian, who works as a cook, to pay off their debts. If they didn’t have the debt to pay off, or even if they had enough for their fare home, they would leave. But they have nothing.
Every employee has a right to one day off a week. But because there aren’t enough staff, some haven’t had a day off in weeks. In the schedule sent out, the hours change all the time, but the underlying system is clear to everyone: they pay for as few hours as they can get away with. Sometimes people work only from early morning until 11am, and then again late at night. The hours in between are completely unpaid.
My days off
I get a text to say I will have Monday and Tuesday off. On Monday morning, I sleep until 10, have a coffee and walk to the petrol station shop with Barbara. On the way, she recalls how when she was working in Slovakia, they had a Ukrainian who worked every day and never had a day off, and yet he earned less than she, a part-timer did. “For them, we are something like the Ukrainians are for us,” she said about the relationship Irish people have with Slovakian workers.
After a week, I text the duty manager a polite message to tell him that I’m leaving. I enjoy the last few evenings in the back yard and I’m very sad to leave this great group of people.
On the following Monday, he suddenly texts me, asking what my bank details are and wondering if I managed to get a PPS number. I assume the hotel has found out that I am a journalist because I told some of my colleagues before I left.
In a group chat on WhatsApp, the manager writes: “Hi all, please let me know if you did not receive a payment in your bank last week or if you have never received payment. Also let me know if you are not receiving your payslip. ” Payslips had not gone to anyone that I spoke to previously. I was told when I took the job that it paid the Irish minimum wage, then €10.50 an hour, before deductions of €62.40 a week for board and lodgings and €3 a week for use of the laundry facilities. I don’t know how much I should have earned, because after I left I couldn’t get a PPS number so too much tax was deducted. Eventually I got sent €369 for eight days’ work.
After leaving, I hear from Sára that she and Sebastian went back to Slovakia and planned to stay there. But they couldn’t find another job so they returned to Ireland. She writes: “It will be better now that we know what we are getting into. We have lower expectations.”

Couples say constitution is 'archaic and patriarchal'
The wives together with their husbands challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act due to alleged gender discrimination.

Two Free State men will now use their wives' surnames after their spouses successfully challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act which they say is, among other things, archaic and patriarchal.
The wives together with their husbands challenged the constitutionality of section 26(1) of the Registration of Births and Deaths Act due to alleged gender discrimination.
The first and second applicants were married in 2021 but were unable to have the husband assume the wife's surname due to department of home affairs restrictions. Their daughter carries a surname they did not intend to be their family name. The third and fourth applicants, Jess Donnelly-Bornman and Andreas Bornman married in 2022 and faced similar issues when trying to have the husband adopt a hyphenated surname combining both their names.
The two couples argued that the act and the regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality. They alleged that this amounted to discrimination based on sex and gender, violating constitutional equality rights.
They  sought to have relevant sections of the act and regulations declared unconstitutional for unfairly discriminating against men in surname changes related to marriage. They argued that the current law is archaic, patriarchal, and incompatible with constitutional values of equality regardless of sex, gender, or marital status.
According to judge Joseph Mhlambi, the first couple – who have not been named – discussed the issue of the surnames when they started dating in 2014 and had always intended that the husband would assume the wife's surname should they get married.
That is because it was her biological parents' surname and symbolised her connection to them.
“They passed away when she was four years old. She has no intention of ever changing her surname, and she explained this to the second applicant at an early stage of their relationship, around 2014,” said the judge.
Regarding the second couple, Donnelly-Bornman is an only child who has stated that her maiden surname is important to her.
“Before their marriage, she informed [her husband Bornman] that she preferred to keep her maiden surname and would rather hyphenate [Bornman's] surname with her own. Both did not wish to have different surnames from each other and their children. They preferred to combine their surnames to reflect their familial unit.”
On completing their marriage certificate, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse
judge Joseph Mhlambi,
“They were married on April 2 2022 at Knysna. On completing their marriage certificate, they realised that though a provision was made for the female spouse to change her surname, no such provision existed for the male spouse,” Mhlambi said.
The Free State Society of Advocates joined the challenge as amicus curiae (friends of the court) and argued that by restricting a man's right to assume their wife's surname, the law violated the principles of gender equality and perpetuated harmful stereotypes, as men are denied a choice that is available to women.
The court had to determine whether the act and its regulations unfairly discriminated based on gender and violate constitutional equality rights.
Judge Mhlambi said he was satisfied that the two couples had established their entitlement to the relief sought and found that the provisions are inconsistent with the constitution due to gender-based discrimination.
He also declared Section 26(1)(a)-(c) of the Births and Deaths Registration Act and Regulation 18(2)(a) of the related regulations unconstitutional due to gender-based discrimination. The court also ordered the department of home affairs to amend the relevant surnames as requested.
The declaration of invalidity was suspended for 24 months to enable the president and his cabinet, together with parliament to remedy the defects by either amending existing legislation, or passing new legislation within two years to ensure that male people are afforded the right of assumption of another surname.

Schreiber said he would reach out to the departments, including the South African Police Service (Saps), for joint operations. 

Leon Schreiber, minister of Home Affairs, during the swearing-in ceremony of the new national executive members at Cape Town International Convention Centre on 3 July, 2024 in Cape Town. Photo by Gallo Images/Brenton Geach

Home Affairs Leon Schreiber says in the coming year, the department will intensify inspections at restaurants, spaza shops, farms and mines by over 50% to take action, including deportations, against people who are illegally employed.

The initiative was started under his predecessor, Aaron Motsoaledi, who earlier this year called for harsher sanctions against business owners who knowingly employ undocumented foreigners.

Motsoaledi was speaking at a stakeholder engagement and service delivery monitoring session in Gqeberha in February.

“Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this act shall be guilty of an offence and liable, upon conviction, to a fine or imprisonment not exceeding one year. Additionally, a second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine,” said Motsoaledi.

“A third subsequent conviction of such an offence shall result in imprisonment not exceeding five years without the option of a fine.”

At the time, Motsoaledi also confirmed that the Department of Co-operative Governance and Traditional Affairs (Cogta) and the Department of Small Business Development were collaborating to tighten laws to prevent undocumented foreigners from operating businesses in the country.

During the department’s budget speech on Monday, Schreiber said he would reach out to the departments for joint operations. 

Home Affairs on immigration

Schreiber further said the department was working on the provision of smart ID cards to naturalised citizens.

He said 280 cards have been issued and another 697 were in progress.

“Once the system has been adjusted to verify compliant applications, all naturalized citizens will be able to visit any Home Affairs office equipped with live-capture facilities to apply for their smart ID cards,” he said. 

Schreiber also announced that Home Affairs would urgently reactivate the Immigration Advisory Board. It will provide him with “evidence-based advice” on tackling matters, such as the process of consultation on the future of the Zimbabwean Exemption Permit (ZEP).

Last month, the Constitutional Court (ConCourt) ruled that Motsoaledi unlawfully terminated the ZEPs.

The court found that Motsoaledi had failed to consult with ZEP holders.

BMA deportations

Also last month, the Border Management Authority (BMA) deployed an additional 400 junior border guards, after an eight-month training programme. 

The majority of the guards are deployed at Beitbridge to Zimbabwe, Lebombo and Kosi Bay to Mozambique and Maseru and Ficksburg to Lesotho.

Their tasks include addressing the scourge of illegal entry, the smuggling of illicit cigarettes, stolen high-value vehicles and stock theft. 

To date, the BMA’s guards have intercepted and deported over 296,000 individuals who had attempted to enter the country illegally.

Over 303 vehicles were intercepted when criminals attempted to illegally take them out of South Africa.

“South Africa needs to do much more to combat illegal immigration. We must do so both because it is central to our national security. But also out of our commitment to economic growth,” said Schreiber. 

“The reality is that no one will want to visit or invest if we allow our country to lose control over its borders and internal security. This problem needs to be tackled in a sustained, integrated and collaborative way,” he said.

The Citizen – 23 September 2024

The move aims to safeguard visa applicants from being unfairly declared undesirable.

The extensions will help address a backlog of applications. 

One of the first acts of new Home Affairs Minister Leon Schreiber has been to give visa applicants a reprieve.

Schreiber extended the temporary concession for foreigners awaiting the outcome of their visa, waiver and appeal applications.

Home Affairs claims the move is aimed at addressing a backlog of applications and not prejudicing the applicants due to the expected delays.

Protection for lawful contributors to SA

Home Affairs considers itself a vital economic enabler, and the move may set the tone for the new administration.

“[This decision] signals the minister’s commitment to improving the visa system to make South Africa a more attractive destination for international investment, tourism and job creation. [It] serves as a signal of intent to reinvigorate the Department of Home Affairs,” stated the department on 4 July.

“In order to build confidence in this new approach, Schreiber further commits to avoid a repeat of the current situation that has seen the previous concession expire prior to the extension being announced,” the department added.

New expiry date 31 December 2024

The new concession will only apply to foreigners who have been legally allowed entry into the country.

Applicants who have submitted their applications via VFS Global and who can show a verified receipt from the VFS Global tracking system will also be accommodated.

Visa holders awaiting a decision on their waiver applications have been given an extention until 31 December 2024. These visa holders will be allowed to travel unreistricted up to, and including, the expiry date.

Long-term visa holders, such as business, study, relative’s and work visas will have their permits extended until 31 December.

Extensions for negative outcomes

Applicants appealing a negative decisions on any of the above visas will also have their paperwork extended until the end of the year.

These applicants must produce a copy of the rejection letter and receipt of the appeal application to leave or re-enter South Africa.

However, short term visa holders (90 days or less) must arrange to leave South Africa within 90 calendar days of their visas expiration or risk being declared undesirable.