Three years after she first tried to marry her husband at Home Affairs, Zizipho Nkumanda, 26, now feels safe for the first time.

“What the court has done for us is to make us safe. Also as a wife, I want to brag that I am married to this husband of mine. It has been hard. I can’t wait to take his name. To register him as the father of our son they made him supply a DNA test as proof.

“I am so happy,” she said. “I can’t wait to get married to him.”

“We are so excited,” Ochogwu said. “We are planning to go back as soon as our lawyers give us the go-ahead. It is a big victory for us,” he said. “This judgment has brought great joy to my family and security to my home. While I was waiting for this judgment I had to fight so many scary thoughts. I am glad that justice was done. It is natural and God’s will for people to fall in love. We are grateful that the judges saw this as well,” he said.

Ochogwu, who works as a pastor at the Dominion Embassy Church in Port Elizabeth came to South Africa in 2011 after his life was threatened by increasing attacks on Christian believers by rebel group Boko Haram in Nigeria.

“I have seen and are aware of numerous Christians that have been killed by Boko Haram. These Christians were thrown in wells or burned. Boko Haram has also attacked churches, by burning them down or bombing them. My younger brother was killed by Boko Haram during one such attack. At a time when the attacks against Christians and churches were increasing, I came to South Africa as I feared for my life. I arrived in South Africa in 2011.”

He applied for asylum and was issued with a temporary permit by the Department of Home Affairs.

His application for asylum was refused but he appealed against this decision and has been waiting for the past seven years for a hearing. If his appeal is successful he will be declared a refugee and be able to live permanently in South Africa.

Ochogwu married Nkumanda, a South African citizen, under customary law in September 2015 but they have been struggling since then to get officials from the Department of Home Affairs in Port Elizabeth to register their marriage.

Ochogwu was first asked for proof of customary union confirming that he paid lobola and also requiring his father-in-law to provide an affidavit. Next, he was sent to Pretoria for the verification of his refugee permit. “We had to go back on many occasions.” Even after the Pretoria office confirmed that his permit was valid, officials refused to register his marriage saying that the “law has now changed” and asylum seekers can no longer get married. This was on Valentine’s Day 2016.

“As a pastor in a Christian community, I want to set an example by entering into a civil marriage with my wife as it indicates to all that this will be a

monogamous long-term relationship. We were very upset that we are not allowed to get married civilly,” he said.

In November 2016, Linton Harmse, head of the Refugee Rights Centre at Nelson Mandela University in Port Elizabeth, discovered that a directive was sent to the Department of Home Affairs offices instructing officials not to register civil unions for asylum seekers.

Officials claimed they could not give Harmse a copy. The document only surfaced in 2017. Ochogwu’s legal team, led by advocate Lilla Crouse SC, then went to court to have the directive declared unconstitutional. The Port Elizabeth High Court did so, but the department appealed against the ruling to the Supreme Court of Appeal.

Petse, writing the judgment on behalf of the court, had some scathing comments for the department.

“State litigants have a duty to be fair to their opponents, and honest and forthright with the court. I have… made reference to the sorry saga to which the [couple] were subjected by the Department of Home Affairs both prior to litigation and in the course of the litigation in the high court.”

He said the court papers filed by the Department was “replete with gratuitous statements impugning the respondents’ honesty and motives… Home Affairs’ indifference to the plight of the (couple) continued unabated to this court”.

“Some eight months after it dawned on the appellants that their refusal to register the respondents’ customary marriage was wrong, they still took no steps to inform the [couple] of ‘their change of heart’ and invite them to their offices in order to register the marriage. Their conduct is inexcusable and deserving of censure by this court. Indeed the [department officials] must consider themselves extremely fortunate that there was no call for them to pay the costs attendant on this litigation out of their own pockets,” Petse wrote.

He ordered that costs be paid by the department on a punitive scale.

Liesl Fourie from the Nelson Mandela University: Refugee Rights Centre described the struggles of asylum seekers to get permits in South Africa.

She said there were five refugee reception offices in South Africa and that appeal hearing dates are allocated “at random” and not on a “first come, first served” or even “oldest cases first” basis.

“Some of our clients have been waiting for hearings for 10 years and more with no indication when a hearing date will be allocated to them,” she said.

She said in 2017 there was a backlog of 200,000 cases awaiting hearing and the board was only finalising about 20 to 25 matters per week with some asylum seekers waiting since 2013 for a ruling by the board.

Fourie said they started receiving complaints from numerous asylum seekers throughout the Eastern Cape, including Mthatha, Aliwal North, Queenstown and East London that the department was refusing to solemnise their marriages. It became clear, she explained that Home Affairs officials were simply refusing to marry any asylum seeker regardless of whom they wished to marry – even if it was another asylum seeker that would not constitute a marriage of convenience as described by the department. MC