PRETORIA - After fighting against the Department of Home Affairs for more than a decade to escape fraudulent marriages, five women are getting the legal support they need and laying the groundwork for a class-action lawsuit, which aims to compel the department to perform its constitutionally obliged duties to citizens.
The Wits Law Clinic has taken on their cases and revealed how these victims have been pushed from pillar to post at various stages of their own efforts to have the fake marriages nullified. Some of the women have been unable to register the births of their children – while others don’t have ID documents or bank accounts. The clinic has also appealed to other women in similar situations to come forward so they can be helped.
A fraudulent marriage happens when the victim’s ID number is used without their knowledge to create a marriage to a stranger that exists only on paper. Their surnames as recorded on the Home Affairs registry then change to those of their alleged “spouses”.
The department told Eyewitness News that it constantly provides training to its staff on all aspects of marriages and raises awareness on civil registration matters broadly with them. But the experiences of the five women paint a very different picture – one of callous indifference, ineptitude and a misunderstanding of how to assist the public.
On 7 May, the Wits Law Clinic’s adjunct professor Phillipa Kruger wrote to the department’s director of births, marriages, deaths & records management, Aaron Ramodumo. That email went unanswered until EWN started asking questions. In the letter, Kruger explains how the five women have never met their alleged husbands and have been engaged in long-term correspondence with the department for more than a decade. “Depending on which branch of the DHA they visited, and depending on whom they spoke to, they were given varying advice.
“Some women were turned away in totality and told the DHA was unable to assist them and they should visit a police station to open criminal charges against the perpetrators of the fraud. Other women were told to apply to the court for divorces. Other women were told to depose to affidavits swearing that they were victims of fraudulent marriages and were promised that upon delivering these affidavits to the department, the department would rectify the records accordingly.
“All five women have been struggling for in excess of ten years with their respective cases. They have been referred to one DHA office after the next and have been given different advice at every turn. They have been saddled with enormous inconvenience as a result of this blatant infringement of their rights,” said Kruger.
Kruger listed some of the problems faced by the victims:
• Many of their children don’t have birth certificates. • Other children have not been able to obtain identity documents. • One woman has had her credit rating ruined because her alleged spouse has been opening and accounts and failing to service his debts. • The women have been unable to marry their chosen partners and have suffered scorn and indignity in their communities. • Those women who have required new valid IDs have been denied those IDs, which has had an effect on their lives, such as the ability to find employment. • Certain women have been unable to access grants to which they are lawfully entitled.
“The infringement of the dignity of these women, who are law-abiding citizens, has been egregious and they are now emotionally and financially distressed, and severely despondent,” said Kruger.
Kruger asked for a meeting with senior Home Affairs official to obtain a proper understanding of the policies and procedures to set aside fraudulent marriages. This letter went unanswered – until EWN set questions to the department specifically asking why no one had responded to Kruger.
WATCH: ‘I'm married to someone that I don’t know’ - Marriage fraud victim speaks out
'THE STATE DOESN’T KNOW MY CHILD EXISTS'
Thami Swartbooi says she discovered in 2006 that she was fraudulently married to a man by the name Johan Zolile Nofemele. The registered marriage certificate records that she has been married to this man since 15 March 2005, but she has never met Nofemele. “I immediately went to Home Affairs in Orlando West, Soweto and I was told that they can’t assist me in their region. I was referred to Vereeniging.
“At Vereeniging I was referred to the manager. I explained the problem. He told me I need to bring a letter from my hospital and because I’m from the rural Eastern Cape I had to bring a letter from the head of the village. I delivered the letter and I was old to give them between six months and a year because they need to investigate,” she said.
Swartbooi says despite follow up calls and visits to the department over the 12 years, she remains locked into the fraudulent marriage. It has had a profound impact on her life. “I have two children. My second child was never registered. The state doesn’t know he exists. But Home Affairs tells me I have two more children I don’t know about,” she said.
Swartbooi described the often humiliating and frustrating treatment she received from Home Affairs officials. “I will be called names. I will be told that if I am tired of marriage, I must just get a divorce. To the point where you want to be rude so that someone can hear you. You scream just so someone can hear you, but you never get service. They degrade you and make you feel like you are nothing. Home Affairs didn’t help me with nothing.”
Masingita Hlungwani says she moved to Johannesburg from Limpopo in 2012 to look for work. She says she was approached by a man who claimed he was opening a new shop in the CBD and asked if she wanted to help him. “I told him I was interested. He asked for my photo, my CV, my cellphone number and my ID. I gave him copies of everything he needed,” she said.
Hlungwani says the man called her a few months later saying he needed to meet again. “We arrived at a shopping centre where I was taken to a small room crowded with other men and women. Some of them said they were also there for jobs, but like me did not know much more about it. Eventually, someone took my fingerprints and asked me to sign a piece of paper,” she said.
Hlungwani says she never heard from the man again and had forgotten about the incident until 2017 when she tried to replace a bank card which was about to expire. “The bank assistant scanned my fingerprints and told me they needed an updated copy of my ID. When I asked why this was necessary, I was told that their system, had picked up I was married, and my surname was ‘Mohammed Imran Ali’.”
Hlungwani has been unable to claim from the Unemployment Insurance Fund; unable to register her marriage to her partner of many years; and recently she was unable to register her son’s name in her maiden name and unable to obtain a support grant for the child.
Another woman, who asked not to be identified, says she discovered she was registered in a fraudulent marriage when she gave birth to her son. “When my son was born, the hospital staff informed me that a notice for his birth could not be completed because their system was reflecting that I was married and I had another surname.
“My fraudulent marriage caused one primary practical issue – I could not access a child support grant for my son despite being eligible for one,” she says.
The woman described in detail how she has been sent from one Home Affairs office to another and given different advice depending on who she spoke to.
In 2015 she received a letter from the department saying that after an investigation the department is not in a position to expunge the marriage from the national population register. “You are advised to lodge an application, at your own cost, at the High Court for an annulment of your marriage or file for a divorce.”
THE DHA RESPONDS
DHA spokesperson David Hlabane says the following process would need to be followed to have a fraudulent marriage set aside:
• The person would need to submit a sworn statement from the South African Police Service. • In the sworn statement, the client confirms that to his/her knowledge, such a marriage is fraudulent / that the client has no knowledge of the existence of such marriage between herself/himself and someone else. • Ten specimen signatures of the complainant and a copy of the complainant’s ID must also be submitted. • An investigation is then conducted.
Hlabane says that in most instances such marriages do not have marriage registers. “In our investigation, we ascertain the existence of a marriage register. This includes checking with the office from which the alleged marriage was concluded. Should such a marriage register exist, we compare the signature on the record with the specimen signatures. Once we are convinced that the information on the register tallies with what is on the ID copy, and the specimen signatures, we then refer the matter to court,” he said.
Hlabane said the Department constantly provides its staff training on all aspects of marriages and raises awareness on civil registration matters broadly. He did not answer specific questions on whether or not the department has conducted an audit of fraudulent marriage on its system.
A TOUCH OF CLASS ACTION
Advocate Erin-Diane Richards, who has been briefed by the Wits Law Clinic, was not in a position to comment on the merits of the individual cases being handled but spoke broadly about the general legal rights of those affected by these fraudulent marriages. “State departments have constitutional obligations to carry out their functions, not only with transparency and accountability but importantly with efficiency.
“Section 195 of the Constitution is very clear on that. If state departments fail in those obligations’ citizens can - and I would go as far as to say must - hold those departments and functionaries to account in the courts, and obviously, they can do that individually or collectively,” she said.
Section 38(c) of the Constitution states that “anyone acting as a member of, or in the interest of, a group or class of persons” may approach the courts alleging that a right in the Bill of Rights as been infringed and the court may grant appropriate relief.
The group of women challenging the department has created the potential for a hugely significant class-action law suit designed to compel the department to protect and uphold the rights of women such as these through material, systemic changes.
Richards would, however, not be drawn into whether this is in fact the strategy being pursued at this stage but did make two observations. “The first is about this notion of civic action. We need to start seeing a decrease in the current levels of civic apathy towards torpidity in the public service, where it's found to exist. Citizens must demand accountability from those that they have elected because the reality is that democracy cannot function properly in the face of civic apathy.
“While it's true that democracy requires the state to fulfill its obligations. The flip side of that coin is that citizens have an equal duty to democracy to enforce government action if and where it's found to be lacking.”
There is no indication at this stage when the case of the five women will be brought to court. The Wits Law Clinic has however appealed to women in similar situation to make contact, by sending an email to Philippa.Kruger@wits.ac.za or calling 011 717 8562.
This article first appeared on EWN : Exposed: The long battle to escape fraudulent marriages in SA