Undocumented Angolan mom fights to stay in SA to get specialist care for disabled son — judge orders minister to decide

A judge of the Western Cape High Court has ordered Home Affairs Minister Leon Schreiber to reconsider a decision by his predecessor to refuse permanent residency to an undocumented Angolan mother who wants to remain in South Africa to obtain medical care for her son. 

The child, who has a severe degree of cerebral palsy, has been receiving treatment at Red Cross Children’s Hospital and state-of-the-art therapy at a care centre in Cape Town. He has severe spastic cerebral palsy, is developmentally delayed and non-verbal, and suffers from a form of quadriplegia. He is unable to move independently.

Acting Judge Nazreen Bawa’s ruling was handed down on Monday, and Schreiber was ordered to make a decision within six months.

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The court did not identify the woman and her child to protect the identity of the boy, now 17, and his younger sister. 

The family applied in 2022 for a special exemption to obtain permanent residence in South Africa.

The family is not lawfully in South Africa and have remained undocumented here for about 10 years. They entered under the guise of a visitor’s visa “for holiday purposes” when they came to South Africa specifically to obtain medical care for their child, and applied for the exemption so they could be given permanent residence based on the therapy and medical treatment he needs.

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The child was born in Luanda in 2007. As a result of his severe permanent disabilities he is unable to walk, cannot talk and cannot take care of himself. He suffers from chronic pain arising from his body’s rigidity and immobility and will require highly specialised medical care for the rest of his life.

The family came to South Africa in November 2013, and their visitors’ visas expired in January 2014. The child’s father returned to Angola soon after that and also cut ties with his wife. In February 2014, the mother applied for a visitor’s visa for her son. Home Affairs officials told her she must return to Angola and apply there. However, she remained behind in the country on her expired visitor’s visa.

“There is no indication that prior to the exemption application to the Minister, any other attempts were made to legalise their stay in South Africa. As an illegal foreigner in South Africa, [the mother] is not eligible for employment. She is a layperson who, beyond working on an informal basis to provide for her family’s basic needs, has not secured permanent gainful employment in South Africa,” Bawa wrote in her ruling.

The disabled child was accepted at the state-of-the-art care centre, where therapy is provided for profoundly disabled children and adults. The centre relies on donor funding and also receives funding from the departments of Health and Social Development. 

In papers before the court the mother said her son would not receive this care in Angola.

Motsoaledi denied the mother’s request in 2022, saying there were no exceptional circumstances to justify granting permanent residency.

In her judgment, Bawa added: “I cannot but be mindful of the number of children born in the Western Cape, and for that matter in South Africa, with special needs and as reflected in a number of judgments, albeit in the context of medical negligence cases, who are not provided with ‘world-class therapy’ by way of charitable assistance or receive access to electric wheelchairs and electronic equipment which has been afforded to [the 17-year-old]. These judgments reflect the cost of the care and medical treatment required by children with the same or very similar conditions as [the 17-year-old] are calculated to run into millions of rands.

“The 17-year-old’s condition is incurable, and he will require lifelong care and assistance, including ongoing therapy, to prevent complications and maximise his mobility and function. At no cost, he receives speech therapy, language stimulation, aqua and other forms of therapy of the standard required for his condition at the care centre. The care centre has provided him with an electronic wheelchair and a tablet to enable him to move himself and communicate with others. There is no mention of [the 17-year-old’s] life expectancy. There is also no mention of the exact cost implications to the South African state of his medical care, though the evidence provided is that he needs multilevel surgeries, which can be provided at the Red Cross, as this is not included in what is provided by the care centre.

“It is anticipated that these surgeries are required to alleviate his chronic pain and to enable him to transfer from a wheelchair to a bed without being lifted when his mother and sister are no longer able to physically lift him.”

In her analysis of the mother’s case and the minister’s response, she said special circumstances warranted the minister granting a foreigner, or a category of foreigners, rights of permanent residence, and regulations stated that it “would promote economic growth and would not be to the disadvantage of South African citizens or permanent residents”.

The special circumstances relied upon by the applicants in the application were that the boy’s medical condition and the need for long-term medical assistance requires his continued residency in South Africa for the foreseeable future; that he has benefited from vital medical assistance and an exceptional support system in South Africa, which he would lose and be unable to replace if required to return to Angola, to his lifelong prejudice; and that there are no other adequate alternative visa or immigration options available to the family.

Additionally, the family asked the minister to consider the application through the prism of the Constitution and the Children’s Act, giving primary consideration to the best interests of the minor child. They further requested the minister to apply the Immigration Act with a humanitarian dimension.

The family’s application further stated that they depend on scholarships and donations, which “though generous, are not certain to continue”.

In giving reasons for his decision, Motsoaledi said that while it is understandable that the child receives medical treatment and therapy in South Africa relating to his medical condition, the Act provides foreigners with visas for medical treatment. 

“The notion that your client is impoverished and without funds cannot be why they cannot obtain the relevant legalising documents. The fact that you have made it clear that they live off the funding from charity organisations, which is not guaranteed to last indefinitely, makes your client highly likely to become a public charge,” Motsoaledi wrote.

“You are undoubtedly aware of the economic situation South Africa is facing and the high rate of unemployment amongst our citizens and permanent residents. It should be known that the responsibility towards your client lies with her country of origin, Angola. For these reasons alone, I am not prepared to favourably consider your application.”

Bawa continued: “Given the level of unemployment in South Africa and a high percentage of unemployment in the unskilled labour market, which [the mother] finds herself in, the exemption application does not provide clarity as to how this family will not be a burden to the State. The Friends Centre does not provide meals or other necessities, nor is it a residential facility shelter… There is no mistake of fact on the part of the Minister in relation hereto. The family have been dependent on charitable support. In the Minister’s view, it was unlikely that this charity would endure indefinitely, and it was probable that at some point, the applicants would require State assistance and, as such, become a ‘public charge’.”

She said the minister’s reasoning did not expressly state that he had considered the children’s best interest.

“Though he indicated that he was aware of the rights in the Constitution and the Children’s Act and took them into account, there is no indication from the reasons furnished that the Minister did indeed apply his mind to the fact that two of the applicants were minor children who have already spent several years in South Africa. It appears from the reasons that the Minister did not have regard to the exemption application through the prism of section 28 of the Constitution read with the Children’s Act. This is the primary reason this decision is being set aside.

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“On the totality of the evidence presented before this Court, the inescapable conclusion is that the Minister failed to consider the impact of his decision on the children with reference to their rights.”

Bawa emphasised that she is not making a finding that the family qualifies for permanent residency because of special circumstances. 

While the court was requested to decide on permanent residency, as could be done in some cases, the acting judge said she would not. 

“Were the Court to be careless in assuming powers bestowed on the Minister, especially in the context of the 17-year old’s medical condition, it may well create a ground for permanent residence carved as an exemption that was not contemplated by the Legislature. Apart from the charitable assistance, the evidence is that [the 17-year-old] requires extensive medical care. Whilst this can be provided by the Red Cross, the applicants’ application is silent on how the costs of such medical care would be borne. There is nothing to indicate that this will not be borne by the State,” she added.

“The reality is that indeed the South African government is likely to bear the costs of the 17-year-old’s medical care – it does so already directly in relation to the “free” medical treatment provided to him at Red Cross and even contributes indirectly to his care as the Departments of Health and Social Services respectively provide subsidies and/or assistance to the care centre… Currently, he is being cared for the remainder of the time by his mother and sister, but if that is no longer possible for any reason, then in all likelihood it will have to be the State that steps in to care for him in a special facility. The implications thereof require careful consideration, more so because it may set some sort of precedent. I am certainly not equipped to give proper consideration to what ultimately is a policy-laden decision to make.

“I cannot exclude the possibility that it potentially has significant cost implications for the public purse or may result in an unintended precedent being set with far wider impact than only the applicants in this matter.” DM