Same-sex couples vs home affairs
For the first time in months a young couple can breathe a bit more freely.
On Monday, a high court judgment has ordered the department of home affairs to respond to their spousal visa
Since Wendy Kessman, an American, and Nomfundo Ngidi entered into a civil union in January last year, they have been trying to get a spousal visa for Kessman. Their attempts were met with two written rejections and, according to the couple, “a verbally harassing phone call from a department official”.
Since Kessman’s visa expired in March 2017, she has been unable to leave South Africa, legally work or study, open a bank account or drive.
“This has been an incredibly hurtful process for our families. They miss us and it is painful to be kept apart. Our freedom of movement and right to dignity are infringed on,” the couple said in a statement earlier this year.
After Monday’s court order instructing the department to respond within 10 working days to the couple’s appeal, Kessman says: “We feel relieved that there is some kind of movement forward. We have the right to dignity as a couple. We’re married. There’s nothing that makes us different from anyone else. The only thing that is different is the way we are being treated.”
In an eNCA interview, the department’s director general at the time, Mkuseli Apleni, said visitors to South Africa could not change their visa status once in the country.
Apleni accused the couple of “orchestrating this thing” because they entered into their civil union months before Kessman’s tourist visa expired.
But the couple relied on a pre-cedent set in the 2016 case Stewart Family vs Home Af fairs. The Western Cape High Court judgment found that the spouse of a South African citizen could apply for a visa while residing in the country.
“The only difference in that case,” says Ngidi, “is that that couple have children, whereas we don’t.”
Julien and Tommy Laubsher are a same-sex couple who became fathers to triplets. Living in the Netherlands, the pair came to South Africa when their surrogate mother gave birth.
Their return to Julien’s hometown of Port Elizabeth to see their newborns for the first time was marred by tragedy when one baby died.
“We had 24 hours with him, before he died in my arms. I felt like I’d been through the worst. We’d lost a child … It became this really awful time in our lives,” says Julien.
“When that ended, we thought we had been through the hardest part. We thought, ‘Now we can focus on getting them birth certificates and passports and get our lives started at last.’ Because we have the law on our side, I never thought this would be the difficult part,” the 32-year-old recalls.
He is referring to the couple’s six-week struggle to have birth certificates issued for their children.
The home affairs department asked them who the children’s parents were. “We told them that we are parents but they said the births had been incorrectly registered as being the surrogate’s children. They then said they could either amend the birth certificate — but that it would take six months or longer — or they could cancel their current birth certificates and register them again under our details,” says Julien.
The couple were then asked for their marriage certificate but were told that, because they got married in the Netherlands, they were not married according to South African law.
“But we said we don’t really have to be married to have children,” says Julien, adding that, after viewing Tommy’s passport, the departmentsaid he was “illegal in South Africa”.
“We explained to them that his visa had expired because, when the department issued him with a new visa, they only extended it for four weeks. We explained and they said, ‘Okay, you’re not illegal but because you don’t have a visa, you cannot be on a birth certificate.’
“It totally did not faze them that we were sitting with this huge issue. We needed birth certificates so that we could get passports so that we could get back to Holland. We have jobs, we have lives and we were stuck,” says Julien.
Six weeks of this “daily struggle of calling every day, going there and listening to empty promises and lies”, Julien says, took its toll on the couple. “There is this extreme frustration. We would get angry with each other but only because we are frustrated with a system that should be on your side, yet everything is getting fucked up. You just want to scream. People who just don’t give a fuck were making our lives hell.”
Julien says that, at one point, the couple were issued with certificates on which Tommy was listed as the babies’ mother.
Tommy adds: “It’s upsetting because they say they are doing their best but it felt like they are doing nothing. Like ‘it’s not our problem’.”
After nearly two months of struggling, the couple were recently issued with the birth certificates.
“We are really happy,” Tommy says, adding: “But we have had a very expensive court case to get this done, so we’re going to have to figure out how to pay for lawyers and advocates for all of this, which wasn’t really necessary.”
Regarding Kessman and Ngidi, home affairs’ spokesperson Thabo Mokgola said the department would respond within the 10-day period.
Having to wait this time out, Kessman ponders what it would mean for them if her application is successful.
“I try not to cry just thinking about how exciting that would be. It would be everything we have been fighting for. Just to be able to be together, to live our lives and grow. I could go to school, we could see my family and I could work. It would mean everything to us. Everything.”
Carl Collison is the Other Foundation’s Rainbow Fellow at the M&G