Court tells home affairs to let Chinese man back into SA for birth of his child

The Western Cape High Court ordered the home affairs department to 'do all things necessary' to allow the man to enter SA.
The Western Cape High Court ordered the home affairs department to 'do all things necessary' to allow the man to enter SA.
Image: 123RF/3DRENDERINGS

A Chinese man was forced to take home affairs minister Aaron Motsoaledi to court after his department refused to allow the man back into SA ahead of the birth of his child.

The man and his South African husband regard Cape Town as their home, but they were in China when the country went into lockdown.

Their baby is expected to arrive in September in Bloemfontein, where the surrogate mother lives.

The man's husband was given the all clear by home affairs to return while he was given a spousal visa. The home affairs department did not give reasons why his application to enter SA was denied, despite him being granted a visa 10 days before.

On July 23 the Western Cape High Court ordered that Motsoaledi's ministry do “all things necessary” to allow the man to enter SA.

A clearance letter was issued and the couple arrived back in SA a few days later.

They are in quarantine in a hotel in Benoni, Gauteng.  

The man, who cannot be named as surrogacy is confidential in SA, was shocked when he heard that home affairs department did not clear his name for travel to SA two days before his scheduled flight.

“I was given to understand that the fact that the embassy issued a relative's visa to me a few days earlier meant the embassy and home affairs department had approved my request to travel to SA, and after the visa is issued, the rest would be procedural.

“I can't bear the thought that I may miss the birth of my daughter, and given the circumstances, I may not be able to see her until several months later. We had to fight for our rights as parents to be there for our daughter when she comes into the world.”

His husband told SowetanLIVE's sister publication TimesLIVE he was “absolutely devastated”.

“For years it has been our dream to start a family. The complicated, lengthy and emotional surrogacy journey we have been on was soon coming to an end. The anticipation and excitement of meeting our daughter has been our driving force during the Covid-19 pandemic.” 

“There are no words to describe having to tell your partner they had to stay behind alone, that they would not witness what would be the most amazing experience of our lives, the birth of our daughter. The thought of not having my partner and parent of our child by my side to welcome our little girl into the world felt as if my heart was ripped out, and our dream was shattered.”

Fertility law expert Andrew Martin said there must be systems in place to negate the negative impacts of the Covid-19 rules, directions and law regarding entry into the country.
Fertility law expert Andrew Martin said there must be systems in place to negate the negative impacts of the Covid-19 rules, directions and law regarding entry into the country.
Image: supplied

The couple's attorney, fertility law expert Andrew Martin, said the matter was completely unnecessary as his clients had been in constant communication with the relevant officials.

“It is also frustrating this was even necessary, given the nature of the request and in light of GN 416 of March 26 2020: Directions issued in terms of regulation 10 (8) of the Regulations made under section 27 (2) of the Act: Measures to Prevent and Combat the spread of Covid-19 (Government Gazette No. 43162. These are directions relating to international travel.”

He said the regulations state that people who fall outside the categories of being a South African citizen and permanent resident may demonstrate exceptional circumstances for their request to enter the country.

“As such, there was adequate notice of 'exceptional circumstances', but they were never considered. Only after service of the application, the day before their flight, did we get any response.”

“I appreciate the stress and strain Covid-19 has placed on government departments, and the work they have done to date is incredible. However, some of the effects are incredibly detrimental and need to have more attention paid to them. There must be systems in place to negate the negative affects of these rules, directions and laws,” Martin said.

The department of home affairs failed to respond to a request for comment.  

TimesLIVE


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