A desperate Angolan mother of a 17-year-old son suffering from severe spastic cerebral palsy turned to court in a bid for Home Affairs to grant her a special exemption to obtain permanent residence in South Africa so that her son can receive the necessary medical treatment here.
The department earlier turned down her application for permanent residence, based on the teenager’s condition. Among the reasons it cited for the refusal was that South Africa is facing economic hardships and a high rate of unemployment, and that the mother must rather look to her country of origin, Angola, for help.
The mother turned to the Western Cape High Court to have the department’s decision reviewed and overturned. The now single mother told the court that the child, who has severe dystonic spastic cerebral palsy, is developmentally delayed and non-verbal, and suffers from a form of quadriplegia.
He is unable to move independently and is classified at Level IV on the Gross Motor Function Classification Scale.
The child receives support at a charitable centre in Cape Town, the Friends Day Centre, and medical care from the Red Cross Children’s Hospital. The mother said that her son would not receive this care in Angola, and this was not placed in dispute.
The child was born in Luanda, and 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 treatment and care for the rest of his life.
The family came to South Africa in November 2013. They entered the country using visitors’ visas, which expired in January 2014. The reason they came to South Africa was to seek the medical care that the child required.
Shortly after they arrived in South Africa, the father returned to Angola and subsequently stopped sending money and cut ties with his wife and children, leaving her as an impoverished single parent.
The mother asked the department for a medical treatment visa for S (the child) in order to stay in South Africa but was told that the applicants would have to do so from Angola. For various reasons, including both S’s health and the expense, they did not do so.
They thus remained in South Africa unlawfully since the expiration of their visitors’ visas. 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 employment in South Africa.
The court was told that the child’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 to the mother, S receives speech therapy, language stimulation, aqua and other forms of therapy required for his condition at the Friends Centre. It has provided S with an electric wheelchair and a tablet to enable him to move himself and communicate with others.
S, however, needs multilevel surgeries which can be provided at the Red Cross Hospital. 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.
It was said that S’s condition would severely deteriorate were he no longer to have access to treatment at the Friends Centre and Red Cross. The application to the department makes it clear that the applicants are dependent on scholarships and charities which, “are not certain to continue into the future.”
Home Affairs said it considered the mother’s application for permanent residency so that she could access the treatment her child needed, but that it declined to grant it. It turned the mother down on the basis that it could not find special circumstances which would justify the granting of permanent residence status.
The Home Affairs ministry told the mother’s lawyer that the Immigration Act does make provision for foreigners to obtain visas for the purposes of medical treatment. In a letter to the lawyer, the department said: “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.”
The department further told the lawyer: “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.”
Acting Judge N Bawa said the court cannot but be mindful of the number of children born in the Western Cape, and for that matter in South Africa, with special needs like S and who are not provided with “world-class therapy” by way of charitable assistance.
The judge noted that the cost of the care and medical treatment required by children with the same or very similar conditions as S is calculated to run into millions of rands and is mostly carried by the State.
Judge Bawa added that it is thus understandable that caution needs to be exercised in relation to the need for permanent care and medical treatment being a basis on which to obtain permanent residence status in South Africa.
“The reality is that indeed the South African government is likely to bear the costs of S’s medical care – it does so already directly in relation to the “free” medical treatment provided to him at the Red Cross Hospital…”
The judge noted that when the child is not at the care facility, his mother and sister take care of him. “But if that is no longer possible for whatever reason, then in all likelihood it will have to be the State that steps in to care for him in a special facility.”
The judge, however, set aside the refusal by the department to grant the family permanent residence, but the court referred the matter back to the department for reconsideration. It must do so within six months of this judgment.
Pretoria News
zelda.venter@inl.co.za