Foreign parents of SA kids win right to remain

● French baker Thierry Gondran’s life has been in limbo for more than two years since his marriage to a South African ended.

Gondran, 48, has been unable to take up a job in Cape Town since 2019 while contesting a clause in the Immigration Act that requires foreigners who are parents of South African children to leave the country if their marriages break down.

The baker, who has three children with his estranged wife, was one of five parents who challenged the constitutionality of this section of the act. The high court in Cape Town ruled in their favour this month.

Gondran detailed his plight in an affidavit, saying he and his wife were married in 2003 and they originally lived in France.

The relationship ended when he discovered she was addicted to tik and alcohol, and the law meant he was unable to stay in SA or accept an offer of R43,000 a month to run a Sea Point bakery.

“I am aware that I am not able to take up such an offer of em- ployment without the appropriate work authorisation and this remains my dilemma,” he said in the affidavit.

“It would now be difficult to relocate my children to France. This would destroy their sense of security and their ability to readjust to French society and its schooling system.”

Joshua Ogada, a Kenyan media researcher who married a South African in 2002, was another litigant.

The couple had a son three years later and in 2008 Ogada was granted a spousal visa. In 2019 the couple divorced.

Ogada told the court he and his wife share the costs of their son’s maintenance and the 17-year-old divides his time equally between their homes.

The academic said he had made two applications for permanent residence, but the department of home affairs was unable to trace either of them. Minister Aaron Motsoaledi denied the law resulted in unfair discrimination.

He said it was meant to “prevent abuse of the immigration system by foreigners who enter into sham marriages (or supposedly permanent relationships) with SA citizens only in order to obtain rights of entry to and residence and work rights in SA”.

Judge Mark Sher declared the section of the act inconsistent with the constitution. But he dismissed an application by Zimbabwean boxing coach Tapiwa Tembo to overturn a decision by home affairs declaring him an undesirable person.

Tembo entered SA in 2010 on an asylum seeker’s permit, which subsequently lapsed. He later paid an immigration official R12,000 to obtain a fraudulent work visa. In 2013 he was arrested at OR Tambo International Airport in Johannesburg, paid a fine and returned to Zimbabwe. But three months later he was back in SA.

In 2015 he met a South African woman and they had a child in 2017, living together in Cape Town for another year before they split up.

“In February 2019 Tembo was again arrested at OR Tambo airport after flying to Johannesburg to visit his son and was declared an undesirable person on the basis that he had overstayed his visa by some 251 days, pursuant to which he was compelled to buy a one-way ticket to Zimbabwe,” said Sher. He returned to SA illegally and is living with his son in Cape Town.

Gary Eisenberg, the lawyer for the foreign spouses, said this week a reformulation of the section of the act needs to be confirmed by the Constitutional Court.

“We are going to ask the Constitutional Court for wider relief to reach all foreign parents who are legitimately parenting their South African citizen or permanent resident minor children. Not only those who had spousal visas before,” he said.

“I believe the judge was courageous. He spent a tremendous amount of time, no less than 10 months, writing the judgment. The judge’s analysis is very helpful at reaching a wider remedy at a higher court.”