Pic: Mihlali Ntsabo
A court order application by married binational same-sex couple Wendy Kessman and Nomfundo Ngidi against the Department of Home Affairs was delayed on Monday.
Kessman and Ngidi expressed their disappointment when they learned that the judge was only willing to grant an interim order against Minister of Home Affairs Malusi Gigaba and his department.
The couple appeared in the South Gauteng High Court in an attempt to force the department to respond to their most recent appeal to be recognised as a family. “It’s been 21 weeks and we were hoping this court order would be granted but the judge said he does not grant court order to ministers,” said Kessman.
The women and their legal representatives were not happy with the option of an interim order and pulled their request from court to be resubmitted at a later date. Kessman, who is originally from America, said she had attempted to acquire a spousal visa three times since early last year. “We’ve been rejected twice on paper and once with a verbally harassing phone call from an official from the Department of Home Affairs,” she said.
The couple’s order application has now been removed from the court roll and they will now have to re-apply to be seen in front of a different judge. The date has not yet been confirmed. “This makes us feel that the finishing line just keeps moving further and further away. It’s heartbreaking but this does not deter us, instead it makes us more motivated to push forward,” Kessman said.
Speaking on how the refusal to get a spousal visa has affected them, Ngidi said her wife is not allowed to leave the country to visit her family or live a normal life. “She was accepted last year to study her PhD at UZKN but couldn’t because during this process you’re not allowed to work, study or leave the country,” Ngidi explained.
After tying the knot in January 2017, Kessman first submitted her paperwork in February 2017 to change her visitor’s visa to a spousal visa. Unfortunately, the couple were told that the application was rejected because Kessman could not apply for the visa while in the country, according to Home Affairs.
In January 2016 the Western Cape High Court ruled that a spouse of a South African citizen can indeed apply for a visa while residing in the country but Home Affairs has simply illegally ignored this decision.
The department has been accused numerous times by LGBT human rights activists of discriminating against members of this community. This includes the department’s refusal to back the amendment of Section 6 of the Civil Union Act which grants 37% of its 1,130 marriage officials the right to refuse to marry same-sex couples on grounds of religion and belief.