Today, 4 December 2025, marks the second anniversary of the Constitutional Court’s landmark judgment in Rayment and Others; Anderson and Others v Minister of Home Affairs and Others. Read together with RS Nandutu and Others v Minister of Home Affairs and Others, it forms part of an emerging line of authority that holds immigration legislation to the discipline of dignity, family life and the best interests of the child.
At the centre of Rayment was a specific question: what becomes of foreign parents of South African citizen or permanent resident children when the spousal relationship that originally grounded their immigration status comes to an end? In many such cases, the foreign parent had lived in South Africa for years on a section 11(6) spousal visa with work or business rights and children had been born to the relationship; and yet the entire legal position hinged on the continued existence of a “good faith” spousal bond. Once that relationship broke down, the visa became null in law, working rights fell away and the parent was, in principle, expected to leave the Republic and start again from abroad, even where they were the caregiving parent of a minor South African citizen or permanent resident child.
The court held that this outcome was constitutionally untenable where South African children were concerned. It declared sections 10(6), 11(6) and 18(2) of the Immigration Act, read with regulation 9(9)(a) of the Immigration Regulations, inconsistent with the Constitution and suspended the order of invalidity for 24 months. That suspension period expires today.
As interim relief during the 24-month suspension, the Constitutional Court provided a temporary read-in to section 18 of the Immigration Act, creating what we have described as the “parental” relative visa in terms of section 18(2), to protect the rights of parents of South African minor children. In practical terms, the judgment provides for a relative’s visa with working rights for parents of South African citizens or permanent resident minor children and for the ability of such parents to change status from within South Africa, rather than being compelled to leave the Republic to apply from abroad. The court also directed regulation 9(9)(a) to include a new category, “a parent of a South African citizen or permanent resident child”, within those allowed to change status from within South Africa, and made it clear that a relative’s visa under section 18, grounded in that parental relationship of minor children, may carry work rights.
For families caught between real life and the rigidity of the system, this was never about technical visa labels nor a marginal adjustment; it was a structural necessary correction whereby the law recognises the child-parent relationship in its own right.
Enduring legacy
Gary Eisenberg’s career was defined by treating immigration and citizenship law as constitutional law in practice. Over nearly three decades, he used litigation to push the system towards transparency, predictability and respect for rights. His law firm became known for challenging provisions and practices that produced arbitrary exclusion and for insisting that immigration decisions must be taken under the rule of law and within constitutional boundaries.
The Rayment litigation, initiated in the Western Cape High Court in early 2020 and eventually vindicated by a unanimous Constitutional Court, sits squarely in that tradition. The grounding idea is that a child’s rights are not incidental to immigration status but central to the analysis, and that when a spousal relationship ends, the legal system cannot treat the parent-child relationship as collateral.
From within the firm, at the second anniversary mark, the case is experienced as part of a broader legacy: one in which carefully constructed applications and hard-fought judgments gradually reshape the normative framework, and in which the task of practice is to ensure that those judgments are translated into real outcomes. Maintaining and honouring such a legacy means also examining how landmark judgments such as these are absorbed, or resisted, in day-to-day administration.
Two years on: law on paper, law in practice
In light of Parliament’s failure to correct the constitutional defect, two years after Rayment the read-in becomes final and remains part of the normative framework. The Immigration Amendment Bill recently passed by Parliament leaves the Rayment provisions untouched, and is silent on parental relative visas, which in practice means that the Constitutional Court’s wording continues to govern this part of the Act.
In the regulatory sphere, on the other hand, changes were implemented on 20 May 2024 and parents of South African citizen or permanent resident children have been written into regulation 9(9)(a) as a category allowed to apply for a change of status from within South Africa. In many cases, this has enabled a parent to move from a lapsing spousal visa or from a short-term visa to a parental relative’s visa without leaving the country.
Where the judgment and the regulations are correctly applied, the difference is concrete. Yet, South Africa’s immigration system is not only a set of texts; it is an institutional culture. It is in this culture that the most persistent misalignment appears. In reflecting on ambiguity and institutional fragility, I pointed to a pattern in which even clear Constitutional Court orders can thin out at operational level. Rayment has illustrated that pattern starkly: a detailed judgment and reading-in, but limited training for front-line officials, and applicants still dependent on whether a particular adjudicator is aware that the visa route exists at all. Too many parents falling under this category have been issued standard relative’s visas without the proper work endorsement and must embark on uncertain “rectification” processes while their livelihoods hinge on administrative correction. For parents of minor South African children whose ability to work and care is at stake, this is not a peripheral inconvenience; it is the continuation of precisely the precarious position the court sought to address.
On paper and in law, the parental visa now exists. In practice, access to it is still filtered through uncertainty, inconsistent interpretation and institutional hesitation. The law recognises the parent-child relationship as constitutionally significant; the machinery tasked with implementing that recognition does so unevenly.
An enduring legacy
None of this detracts from what Rayment represents. Two years on, the judgment can be seen more clearly as a constitutional insistence that immigration law must absorb and reflect the lived reality of parents and children, rather than forcing them to shape their lives around rigid visa categories.
At the same time, Rayment now belongs to another legacy as well: that of Gary Eisenberg. Describing the parental visa as a “breakthrough towards the democratisation of South Africa’s immigration process” was never simply a phrase; it expressed an ongoing project.
To honour that project is to keep working at the level where law either protects or fails: to ensure that judgments like Rayment are not reduced to citations; to read each regulatory amendment closely; to notice where official practice drifts away from constitutional standards; and, where necessary, to continue testing that practice in the courts. Attorneys have an important role to play here as vigilant custodians of constitutional standards and practical watchdogs over implementation. The remaining work lies in narrowing the distance between the clarity of the Constitutional Court’s order and the uncertainty that still characterises too many encounters with the system. DM
Claudia Pizzocri is CEO at immigration and citizenship law firm Eisenberg & Associates.