This case entails the Constitutional Court’s confirmation of an order of invalidity of the Western Cape High Court

The applicants were foreign spouses of South African citizens who applied for work permits in terms of previous legislation, the Aliens Control Act of 1991. In terms of such Act, applications for work permits could only be made outside of South Africa. Furthermore, such legislation provided that work permits may only be issued to spouses of South Africans if they did not or were not likely to pursue an occupation in which a significant number of persons were available in South Africa to meet the requirements of its inhabitants.

The Court held that such provision of the Aliens Control Act requiring the foreign spouse to apply for a work permit abroad significantly impaired the ability of spouses to honour their obligations to one another and constituted an unjustifiable limitation of the right to human dignity of both South Africans and their foreign spouses, and on such basis confirmed that the legislation was unconstitutional and invalid.

The Court also held that such provisions of the Act that prevented foreign spouses who were the sole or main provider for their families from fulfilling their duty of support and constituted an unjustifiable limitation of the right to human dignity of both South Africans and their foreign spouses. Such section was therefore confirmed to be unconstitutional and invalid.

The Court suspended the orders of invalidity for 12 months to allow Parliament to correct the inconsistency. Pending the enactment of such legislation or the expiry of the 12 months, the Court directed that the Department of Home Affairs was to accept any application for a work permit made within South Africa by the foreign spouse of a person who was permanently and lawfully resident in South Africa.

Pending the enactment of such legislation or the expiry of the 12 months, the Court directed that the Department of Home Affairs may not refuse to issue, or extend work permits to foreigners espoused to South African citizens of permanent residents unless good cause existed for the refusal to issue or extend such permits was established.

The fact that the foreign spouse pursued or was likely to pursue an occupation in which a sufficient number of persons are available in South Africa to meet the requirements of the inhabitants of South Africa shall not be taken into account for determining the existence of good cause.

June 4, 2001

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