Pretoria News - Dec 18, 2020
Pretoria
- A Zimbabwean citizen who had been kicked out of South Africa and deported
back to Zimbabwe has received an early Christmas gift.
The Gauteng High Court, Pretoria
has ordered Home Affairs to allow Gibson Tawodzera back into the country
At the
time, Home Affairs had, out of the blue, 13 years after his South African wife
had died, insisted that the marriage was all along a sham.
The
Gauteng High Court, Pretoria has now ordered the department to allow Gibson
Tawodzera back into the country and reissue him with his permanent residency
permit.
He
approached the court after Home Affairs told him that his marriage was non
existent and he could not remain in the country.
Tawodzera
entered South Africa in 2000 and two years later he married Bongiwe Sombudla, a
South African citizen. The director-general of the department issued Tawodzera
with a permanent residence permit in 2004.
In terms
of the emigration law, as it then read, Home Affairs could issue a permanent
residence permit to any person who is the spouse of a South African, provided
that the department was satisfied that “a good faith spousal relationship
exists”.
The 2005,
the Immigration Act was amended, which made it more difficult to obtain
permanent residence in South Africa. It required a foreign spouse to have been
married to a South African citizen for at least five years.
Sombudla
died in 2006, but her husband nonetheless retained his permanent residency
status. This was because his marriage had been terminated by her death and not
because they had separated.
Almost 13
years later, in March 2019, Home Affairs sent a letter to Tawodzera recording
that he acquired permanent residence by marriage, but alleging that “it appears
that the marriage was fraudulent”.
The
letter went on to allege that Tawodzera’s permit “was therefore issued on a
misrepresentation” and that he was now a foreign national who was in the
country illegally.
This was
the start of Tawodzera’s long and fruitless struggle with the department in a
bid to try and convince them that he and his wife loved each other and that her
death was the only reason why they were apart.
The court
had criticised the conduct of the department on various levels, including that
it never once mentioned why it deemed the marriage to have been a sham.
The
department said that Tawodzera’s permanent residence permit was invalid because
it was obtained in breach of the Immigration Act.
It was
argued that acquisition of permanent residency by marriage was only possible if
the applicant had been the spouse of a citizen or permanent resident for five
years.
The
department argued that Tawodzera was married to Sombundla for less than four
years before her death. He could accordingly not have lawfully acquired
permanent residence, they said.
But Judge
SDJ Wilson said Tawodzera’s permanent residence permit was granted under a more
generous regime than now applies.
The
highwater mark of the respondents’ case seems to be that Tawodzera’s permanent
residence permit was invalid because his marriage to Sombundla was a sham. But
the department had produced anything to substantiate this – not to Tawodzera or
the court, the judge said.
Tawodzera
was arrested last year for being in the country illegally and before he was
deported. The prosecutor at the time told the court that no one from Sombudla’s
family knew of his marriage. But the judge now remarked that there is no
evidence substantiating it.
The judge
said under these circumstances, Tawodzera must be allowed to return to South
Africa, where he had been staying for 20 years and had made a living for
himself.
www.samigration.com