Briton James Tomlinson, a permanent resident in SA, and his wife, Sarah Nandutu, a Ugandan citizen, have won – and lost – in their Western Cape High Court Home battle with Home Affairs Minister Malusi Gigaba. While their son, Joshua, will finally have the birth certificate they needed, they failed to convince the court to amend immigration regulations that have prevented them from living as a family.

They were unable to register the birth because Nandutu only has a travel visa. She was three months pregnant when she travelled to SA in February 2015. They got married and applied for a spousal visa but her appeal to both the department’s DG and Gigaba failed, notes a Sunday Times report. This was because the Immigration Act does not allow people to change their visa status once in SA. But Nandutu could not return to Uganda because her child is undocumented.

They then asked the High Court to compel Gigaba to tweak the regulations and reconsider the application. They were joined by another couple, accountant Ilias Demerlis and businessman Christakis Ttofalli, in instituting the lawsuit. Acting Judge Daniel Thulare dismissed the joint application. But he ordered that the Home Affairs DG ‘assist . . . Joshua in having his birth registered’. He granted Nandutu and Demerlis leave to appeal to Gigaba to reconsider their application and waive the prohibitive immigration regulations.

But Thulare said Nandutu’s marriage did not automatically qualify her for a spousal visa. ‘A registrable ritual to prove constitution of family, which is sealed by (Nandutu) kissing another, is simply not enough to except her to account for her health, social, economic and security risks to SA and its people,’ Thulare ruled. Their lawyer, Gary Eisenberg, reportedly said the judgment was legally incompetent.

Full Sunday Times report (subscription needed)