Pic: Mambaonline / Mihlali Ntsabo
A court has had to order the Department of Home Affairs to do its job and respond to an appeal by a married bi-national same-sex couple who are desperate to legally live together in South Africa.
South African Nomfundo Ngidi has been trying since February 2017 to get a spousal visa for her legal wife Wendy Kessman, who hails from the USA.
Home Affairs repeatedly denied their applications and the couple submitted a final appeal against the rejections on 9 January this year. But after more than six months, the department has still not bothered to provide a response.
Faced with continuing to live in limbo, the women were forced to take the issue to the courts in an attempt to get the department to reply.
On Monday, the South Gauteng High Court agreed to grant a court order instructing the department to respond in writing to the couple’s appeal within 10 working days. The order is expected to be served on the director general of Home Affairs before the end of the week.
Kessman told Mambaonline she was relieved that there was finally some movement in the case. “This is most definitely a step in the right direction. Home Affairs has been using stalling tactics since the beginning. They just decided not to respond or just to ignore us. We wish we didn’t have to get to the point where we needed a court order to get a response but we really didn’t have a choice at this point.”
She added: “It’s not acceptable when Home Affairs is not ruling on people’s matters when their lives are on hold.”
If the department rejects their appeal, Kessman plans to take the matter to the high court. Without the visa, she cannot work or study in South Africa.
“We are a family too,” Kessman wrote in an open letter to the Minister of Home Affairs, Malusi Gigaba, in May. “We are committed and married, just as you and your wife are. We are tired of consistently having to plead and prove we are worthy of the same dignity and rights as any other family afforded to them by the South African Constitution.”
After tying the knot in January 2017, the couple first submitted paperwork to change Kessman’s visitor’s visa to a spousal visa in February 2017. Home Affairs has repeatedly refused their applications and claimed Kessman cannot apply for the visa while in the country, despite a January 2016 Western Cape High Court decision in another case to the contrary.
Over the years, the department has been repeatedly accused of discriminating against members of the LGBTQ community. This includes its refusal to back the amendment of Section 6 of the Civil Union Act which grants around 37% of its 1,130 marriage officials the right to refuse to marry same-sex couples. Transgender South Africans are also regularly given the run around when they apply to change their gender marker in their identity documents.