Pretoria – A Zimbabwean citizen who had been kicked out of South Africa and deported back to Zimbabwe has received an early Christmas gift.
At the time, Home Affairs had, out of the blue, 13 years after his South African wife had died, insisted that the marriage was all along a sham.
The Gauteng High Court, Pretoria has now ordered the department to allow Gibson Tawodzera back into the country and reissue him with his permanent residency permit.
He approached the court after Home Affairs told him that his marriage was non existent and he could not remain in the country.
Tawodzera entered South Africa in 2000 and two years later he married Bongiwe Sombudla, a South African citizen. The director-general of the department issued Tawodzera with a permanent residence permit in 2004.
In terms of the emigration law, as it then read, Home Affairs could issue a permanent residence permit to any person who is the spouse of a South African, provided that the department was satisfied that “a good faith spousal relationship exists”.
The 2005, the Immigration Act was amended, which made it more difficult to obtain permanent residence in South Africa. It required a foreign spouse to have been married to a South African citizen for at least five years.
Sombudla died in 2006, but her husband nonetheless retained his permanent residency status. This was because his marriage had been terminated by her death and not because they had separated.
Almost 13 years later, in March 2019, Home Affairs sent a letter to Tawodzera recording that he acquired permanent residence by marriage, but alleging that “it appears that the marriage was fraudulent”.
The letter went on to allege that Tawodzera’s permit “was therefore issued on a misrepresentation” and that he was now a foreign national who was in the country illegally.
This was the start of Tawodzera’s long and fruitless struggle with the department in a bid to try and convince them that he and his wife loved each other and that her death was the only reason why they were apart.
The court had criticised the conduct of the department on various levels, including that it never once mentioned why it deemed the marriage to have been a sham.
The department said that Tawodzera’s permanent residence permit was invalid because it was obtained in breach of the Immigration Act.
It was argued that acquisition of permanent residency by marriage was only possible if the applicant had been the spouse of a citizen or permanent resident for five years.
The department argued that Tawodzera was married to Sombundla for less than four years before her death. He could accordingly not have lawfully acquired permanent residence, they said.
But Judge SDJ Wilson said Tawodzera’s permanent residence permit was granted under a more generous regime than now applies.
The highwater mark of the respondents’ case seems to be that Tawodzera’s permanent residence permit was invalid because his marriage to Sombundla was a sham. But the department had produced anything to substantiate this – not to Tawodzera or the court, the judge said.
Tawodzera was arrested last year for being in the country illegally and before he was deported. The prosecutor at the time told the court that no one from Sombudla’s family knew of his marriage. But the judge now remarked that there is no evidence substantiating it.
The judge said under these circumstances, Tawodzera must be allowed to return to South Africa, where he had been staying for 20 years and had made a living for himself.