PP Smit Attorneys

A foreigner’s immigration status is determined by the relevant visa or permanent residence permit and the rights and obligations related to it, as granted to them in terms of the Act.

Applications were consolidated and brought in the Western Cape High Court, seeking orders declaring the Act or certain sections thereof to be inconsistent with the Constitution, especially when read together with certain of the Immigration Regulations which were promulgated in terms thereof. These sections were deemed inconsistent to the extent that they require foreigners who are parents and caregivers of SA children to cease working and leave the country when their spousal relationships with their SA spouses come to an end, or when they no longer co-habit together.

The spousal visa that is in issue, provided for in the Act, affords temporary residence and it was held by the Constitutional Court in Nandutu v Minister of Home Affairs 2019 (5) SA that the nature of the rights and conditions attached to the spousal visa are different from an ordinary visitor’s visa in the sense that it intends to offer a foreign spouse a permanent route to a permanent residence permit provided that the foreigner has been the spouse of an SA citizen for 5 years. However, such permit will lapse if at any time within a period of 2 years from the date of issue the spousal relationship ceases. At this point, the foreign resident is to depart from SA, failing which they will be considered illegal foreigners and be deported. The Act is unclear, however, as to how it is to be determined that a spousal relationship has ended.

The Honourable Justice Sher pointed out that: “The applicants contend that the legislative provisions in question are unconstitutional inasmuch as their effect is to unjustifiably limit their constitutional rights and those of their children, to dignity and equality, and to parental care and legislative processes that give effect to the best interests of the children”. The Applicants also claimed that being forced to cease working in SA and undergoing deportation not only have a financial impact on their children but also in terms of their development and emotional wellbeing.

Sher further explored the Constitutional Court’s decision in the Nandutu matter, in which it was stated that marriage and family were social institutions of ‘vital importance’ and went further to say that marriage imposed moral and legal obligations on both spouses including a duty of support and cohabitation, as well as joint responsibility for supporting and raising children born from it.

As our Courts always consider the best interest of the child, Sher further considered the Children’s Act 38 of 2005 and the African Charter on the Rights and Welfare of the Child, adopted by the OAU in 1990 and adopted by SA in November 1999, stating that: “both these instruments recognize the right and dignity of children and their parents and that the interest of the child shall be primary consideration as well as that a child is not to be separated from their parents against their will except when necessary”.[1]

In these circumstances, foreign parents are faced with a very difficult situation, to either break the law by continuing to live and work in SA to maintain their responsibilities and relationship with their children or abide the law and leave the country and risk failing to uphold their duties as parents.

An order was made that the declaration of invalidity is suspended for a period of 24 months, in order to afford Parliament the necessary time to remedy the inconsistencies with the Act and in the interim certain provisions to be read-in to the Act. Should Parliament not remedy same, the readings-in shall become final.

Reference List:

  • Immigration Act 13 of 2002.
  • WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others.
  • [1] WCHC.TR and Others v The Minister of Home Affairs and Others; RA and Others v The Minister of Home Affairs and Others.

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Carla Cloete

Director | Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the PP Smit team as a professional assistant.

Carien Hamman

Attorney & Notary | LLB

Carien grew up and matriculated in the picturesque town of Ceres, whereafter she furthered her studies at the University of Stellenbosch and obtained her LLB degree in 2015. She completed her articles at VanderSpuy Cape Town in 2017 and stayed on as an associate litigant after being admitted as an attorney during early 2018. Carien loves the countryside and thus ventured back to Ceres where she joined Joubert Van Vuuren Inc. for a year. However, when she was presented with the opportunity to enjoy both the country- and the seaside, she couldn’t resist and joined PP Smit Attorneys at the beginning of 2022 as an avid litigator. When she is not at the office, Carien enjoys long walks, wine tasting, and exploring the area with her family and friends.

Harmann Potgieter

Attorney | LLB | NQF 7

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with PP Smit Attorneys as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys, and not too long after that, he grabbed the opportunity to work at PP Smit Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director of the firm, where he practices in the Litigation department. Jandré additionally joined the company of PP Smit Attorneys during the same year. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity he joined the company of PP Smit Attorneys during 2006. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he moved to Vredenburg and joined Swemmer & Levin, where after he joined the company of PP Smit Attorneys during 2006.. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking.

Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. In 2004, he also joined the company of PP Smit Attorneys.

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners.