Spouses and Children: Nandutu and Rayment, Two Branches Grown from Dawood

Spouses and Children: Nandutu and Rayment, Two Branches Grown from Dawood

Nandutu [2019] ZACC 24 | Rayment / Anderson [2023] ZACC 40 — whether a foreign spouse may change status without leaving the country, and what is left of a foreign parent of a South African child once the marriage ends.

This instalment deals with two decisions that matter enormously to Chinese–South African cross-border families.

The first question: the foreign spouse of a South African citizen enters on a visitor's visa — may that person change to a spouse's or relative's visa without leaving the country? Before 2019 the answer was no: you had to fly back to China and start the application again from scratch.

The second question is harsher still: the marriage has broken down, and you have a South African child. Your right of residence was tied to a marriage that has now ended, your right to work vanished with it, and you cannot change visa category from inside the country. Your child is here; you may neither stay nor earn.

The Constitutional Court answered these two questions in 2019 and 2023 respectively. Both answers point back to the same source: Dawood, discussed in instalment 02.

Part 1 — Nandutu: The Door to Changing Status From Within the Country

Case file

First, the relationship between the provisions must be set out clearly, because this point is very easily misstated.

§ Immigration Act 13 of 2002, s 10(6)(b) and Immigration Regulations reg 9(9)

s 10(6)(b): a holder of a visitor's or medical visa may not apply for a change of status while inside the Republic, save in the exceptional circumstances prescribed by regulation.

reg 9(9): the exceptional circumstances referred to are — (a)(i) the need to receive life-threatening emergency medical treatment for longer than three months; (a)(ii) being the accompanying spouse or child of a business- or work-visa holder who intends to apply for a study or work visa; and certain other situations.

⚠ What was declared invalid was reg 9(9)(a), not s 10(6)(b) itself

It is commonly written as "s 10(6)(b) is unconstitutional" — this is inaccurate. The Constitutional Court held that the empowering provision (s 10(6)(b)) is itself unobjectionable; the problem lies in the regulation the Minister made — reg 9(9)(a) — which, in listing the "exceptional circumstances," omitted the foreign spouses and children of South African citizens and permanent residents.

The rule this case established

1. The omission itself is unconstitutional. Forcing a foreign spouse to leave and reapply substantively limits the right to dignity under section 10 of the Constitution (the right to enter into and sustain a marriage relationship) and children's rights under section 28. That limitation cannot survive the section 36 analysis.
2. The remedy: reading-in. The Court did not strike out the whole of reg 9(9)(a); instead it read in a clause: "(iii) is the spouse or child of a South African citizen or permanent resident." The declaration was suspended for 24 months to allow Parliament / the Minister to amend the law; failing amendment within that period, the reading-in takes effect permanently.
3. The reach of the Minister's exemption power under s 31(2)(c) was delimited. The Court confirmed that the Minister's power to grant exemptions under s 31(2)(c) can only waive requirements imposed by the regulations, not requirements imposed by the Act itself. This is a boundary the Department of Home Affairs frequently oversteps.

◆ Froneman J's dissent is worth noting

Froneman J (Mogoeng CJ and Ledwaba AJ concurring) would have dismissed the appeal, and expressed reservations about extending the principle in Dawood to the entry and residence rights of non-citizens.

This disagreement is not merely academic: it touches a fundamental tension in South African immigration law — to what extent can the right to dignity be translated into a residence claim for a foreigner? The majority's answer is far broader than the dissent's, and four years later that line of reasoning was taken further still.

Part 2 — Rayment / Anderson: After the Marriage Ends

Case file

This case addressed a concrete and widespread predicament. A foreign spouse obtains a spouse's visa under s 11(6) and is authorised to work. Once the marriage or partnership terminates, the visa lapses with it — the right to work disappears immediately, and the person may not apply for any other visa category from inside the country.

The difficulty is this: they have children with a South African citizen, and those children are South Africans. To force the parent out of the country is to separate a South African child from that parent, or to compel the child to leave their own country as well.

The rules this case established

1. Stripping the right to work the moment the relationship ends is unconstitutional. Compelling the foreign parent of a South African child to stop working when the relationship terminates unduly limits the right to dignity and children's rights — a parent who cannot earn cannot discharge the duty to maintain the child.
2. The bar on applying for an alternative visa from inside the country is unconstitutional. The very same omission in reg 9(9)(a) was named again, after Nandutu.
3. Refusing work authorisation to a relative's-visa holder is unconstitutional. Denying work authorisation to a relative's-visa holder who is the parent of a South African child is an equally unconstitutional limitation.
4. Transitional arrangement: notionally amended provisions plus continued validity of existing visas. During the 24-month suspension the Court's notionally amended provisions apply; and applicants' existing visas remain valid until their new status is determined — a point that spares those affected from falling into unlawful residence during the transitional period.

⚠ A note on timing

The judgment was handed down on 4 December 2023; the 24-month suspension therefore runs to December 2025. As at the date this article was verified (27 August 2026), we have not been able to confirm whether the corresponding amendment to the Act or the Regulations has been completed. Before relying on this in any particular case, check the current text of the Immigration Act and the Immigration Regulations, and whether any further order of the Constitutional Court has followed.

Part 3 — How This Line of Authority Grew

Twenty-three years of the dignity–family line

• 2000 — Dawood v Minister of Home Affairs [2000] ZACC 8. Entering into and sustaining a marriage relationship is protected by the right to dignity under section 10 of the Constitution; a statute authorising a limitation of that right must provide guidance.
• 2019 — Nandutu v Minister of Home Affairs [2019] ZACC 24. reg 9(9)(a)'s omission of the foreign spouses and children of citizens / permanent residents is unconstitutional; a clause was read in. The Minister's exemption power reaches only the regulations, not the Act.
• 2023 — Rayment / Anderson v Minister of Home Affairs [2023] ZACC 40. Stripping the right to work on termination of the relationship, barring in-country change of status, and refusing work authorisation to relative's-visa holders are all unconstitutional. The reach expanded from "sustaining a marriage" to "still being a parent after the marriage ends."

What is notable is the shift in the centre of gravity of the reasoning. Dawood protects the marriage relationship itself; Rayment protects the parent–child relationship that survives the end of the marriage. In other words, the Court re-anchored the foreign spouse's right of residence from "whose spouse you are" to "whose parent you are" — and the latter does not disappear on divorce.

Part 4 — Practical Implications for Chinese–South African Families

Four common situations and the corresponding routes

1. The Chinese spouse of a South African citizen who enters on a visitor's visa and wishes to change to a spouse's visa. Under clause (iii) read in by Nandutu, this falls within the exceptional circumstances of reg 9(9)(a), so the application may be made from within South Africa. It must be submitted not fewer than 60 days before the current visa expires (reg 9(5)).
2. The accompanying spouse or child of a business- or work-visa holder who wishes to change to a study or work visa. reg 9(9)(a)(ii) already expressly permits an in-country application. The direction of travel matters here: a parent holds a work or business visa, the child accompanies and then changes to a study visa — that works; the reverse (the child holds a study visa first, and the parent then seeks to remain) has no statutory foundation.
3. The Chinese spouse of a South African citizen, marriage now terminated, with a South African child. Under Rayment, the right to work may not be stripped merely because the relationship has ended, nor may an in-country application for an alternative visa be barred. During the transitional period the existing visa remains valid until the new status is determined.
4. A holder of a relative's visa (s 18) caring for a South African child, but refused work authorisation. Under Rayment, refusing work authorisation to a relative's-visa holder who is the parent of a South African child is unconstitutional.

Note also s 11(6): the spouse of a South African citizen or permanent resident who does not meet the requirements of any visa category under ss 13 to 22 may nonetheless be issued a visitor's visa, and may, on application, be authorised to conduct any of the activities falling under those visas. But the provision also requires the holder to apply for permanent residence under s 26(b) within three months of becoming eligible.

◆ An easily overlooked distinction: first- and second-degree kinship

The relative's visa under s 18 of the Immigration Act applies to relatives "within the second step of kinship"; the relative's permanent residence under s 27(g) applies only to relatives "within the first step of kinship."

This means that some kinship relationships can secure a visa but not permanent residence. When planning a long-term route, this distinction must be factored in from the outset.

◆ Practical takeaways for clients

• The statement "you cannot change status after entering on a visitor's visa" is no longer entirely accurate. The foreign spouses and children of South African citizens and permanent residents may apply from within the country, under clause (iii) read in by Nandutu.
• But you must still submit not fewer than 60 days before expiry. The time limit in reg 9(5) has not changed. Nandutu settled "whether you may apply from within the country," not "when you must apply."
• When planning a family's route to South Africa, watch the direction of travel. Parent holds a work / business visa first, child accompanies and then changes to a study visa — that works; child holds a study visa first, then the parent seeks to remain — no statutory foundation (this was set out in detail in instalment 03 of the earlier Visa Application Guide series).
• When a marriage runs into trouble, the first thing to deal with is not the property — it is the visa. What Rayment protects is the status of "parent of a South African child" — so fix the parent–child relationship, the maintenance arrangements, and contact rights in writing as early as possible.
• When the Minister says "I can exempt you from this," first confirm whether what is being exempted is a regulation or the Act. Nandutu established that the exemption power under s 31(2)(c) reaches only the regulations, not the Act itself.
• Before relying on these two judgments, check the current text. Both made suspended declarations, and the progress of amendment must be confirmed separately.

Immigration law is good at handling status and poor at handling relationships. It can state precisely which category of visa you hold, yet struggles to say what exactly you are when the marriage has ended and the child is still there. It took the Constitutional Court twenty-three years to move the answer from "someone's spouse" to "the parent of a South African child."

Sources

• Nandutu and Others v Minister of Home Affairs and Others 2019 (5) SA 325 (CC); 2019 (8) BCLR 938 (CC); [2019] ZACC 24 (28 June 2019)
• Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others 2024 (2) SA 591 (CC); 2024 (2) BCLR 264 (CC); [2023] ZACC 40 (4 December 2023)
• Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC); [2000] ZACC 8
• Immigration Act 13 of 2002 ss 10(6), 11(6), 18, 18(2), 26(b), 27(g), 31(2)(c)
• Immigration Regulations 2014 regs 9(5), 9(9)(a), 12(b)
• Constitution of the Republic of South Africa, 1996, ss 10, 28(1)(b), 28(2), 36
• Both cases made suspended declarations (24 months each). As at the verification date, whether the corresponding amendment or regulatory revision has been completed remains unconfirmed; check the current text before relying on them.

This article analyses judgments publicly published by South African courts, available in full on SAFLII (www.saflii.org); the parties' names appear on the face of the published judgments and are not client information of this firm. This is general legal information and academic discussion, does not constitute legal advice on any particular matter, and does not establish an attorney–client relationship. Case law may be overturned or distinguished by later decisions, and statutes may be amended; check the original text and the latest developments, or seek advice from a practising attorney on your own case, before relying on this. Verified as at 27 August 2026.

June Luna Immigration Attorneys Inc. — Cape Town, immigration and administrative law specialists. Visa refusal appeals (s 8(4) / s 8(6)); overstay and undesirable-person relief; detention and deportation; permanent residence and naturalisation; PAJA judicial review and mandamus.