Still no love at Home Affairs for
By Kellyn Botha
South Africa, 14 February 2018
“I love playing games that challenge me mentally, listen and sing to music like I am talented, and cleaning. She loves cooking, writing, painting and gardening. Well, she does the planting, I keep them alive,” says Nomfundo Ngidi-Kessman, half-jokingly of her wife, Wendy.
A married couple like any other, with hobbies, and hopes for the future, but Nomfundo and Wendy Ngidi-Kessman are not like other couples. At least not according to Home Affairs it seems, which has, in what is widely considered the “month of love”, continued to try and separate a legally married couple.
The two met on the dancefloor in a Durban club. Nomfundo, a South African woman, and Wendy from America, hit it off almost immediately, and the more time they spent together, the more deeply they fell for one another.
“We spent so much time together I think I even forgot that she was American. As soppy as it sounds,” says Nomfundo. I was in love with somebody I didn't know I would ever see again and that made me uncomfortable, I felt like I was tripping. So I knew from the start but right then there was too much doubt when it comes to the feasibility. But I knew I had to wife her.”
With Wendy often in Swaziland, working at a Methodist girls’ home, the pair had to make the most of the little time they did get to spend together. But it was hard going and the constant compromises took a toll on the emotions of both women.
“I knew it was the real thing when she became my home. We were long distance for quite some time, traveling back and forth. There was this one time I got upset because I missed her and she couldn’t come when she thought she could,” says Wendy. “She came to Swaziland and surprised me, I just got a call saying she was at the border. She took a 7 hour Kombi to come see me; got in at 9 pm and had to take the 7am ride back to Durban. This person who would go this far for me, I love them and would do the same.”
Wendy adds “We had talked about getting married, it was a normal conversation for us because we were in love and it was an exciting thought. I wasn’t expecting it when she bought me the ring, but the answer was always of course. She said she was ready to get married and whenever I was ready we would. I said I wanted to live together for a bit first. I moved in with her in August 2016. By the sixth of January 2017 we were married. It was a really beautiful emotional day.”
When Wendy first came out her family was supportive but concerned for her own wellbeing and safety. Nomfundo’s family has also accepted her for who she is.
“Wendy first came out as bisexual. It was before we got married she said that she was lesbian and happy. Her parents said they suspected because all her friends were lesbian. Her father wanted to protect her little girl as he had seen how hard life was for his gay brother, but she assured him that times had changed. When she first moved to Swaziland working at a methodist girl's home, the one women blatantly discriminated against her and the kids would ask why she was so nice when the woman was so evil. She felt it important to make her see how indifferent she was. That she could be lesbian and be like everybody else,” says Nomfundo, who grew up identifying as transmasculine.
“Everybody would tell my ma that I was tomboy like her. My aunt would tell suitors I was lesbian and my cousins told them I was a boy. I think everybody just accepted their own label and it seemed pretty normal growing up different; But I would feel sorry for my grandma having to answer why I was dressed like a boy at church. She was supportive but her church really made it hard for her.”
But nothing that Wendy or Nomfundo had experienced yet had prepared them for the trauma that was dealing with South Africa’s Department of Home Affairs. Wendy, as an American citizen, has to constantly renew her visa to continue living, working and studying in South Africa. When applying for a spousal visa earlier this year, it was declined.
In South Africa, same-sex marriage has been legal since 2006, but opposition to the move meant that rather than a marriage certificate, same-sex couples would be issued with a “civil union certificate”. Under the law, Nomfundo and Wendy are in a civil union but should, in theory have many of the same benefits of being married. The Department of Home Affairs, however, has a long history of discrimination against the LGBTI community, from the delays and excuses given to transgender South Africans seeking gender-marker ammendments (leading one woman to go on a hunger strike to seek justice), to the illegal annulments and divorces of same-sex couples and the all-too-legal right of Department officials to refuse to marry same-sex couples.
Nomfundo says “We got a rejection, on grounds of being in the country during application, which should not be a problem according to the law. We went back to the officer who told us whoever viewed our application is probably not up to date with the amendments, so we got help from an immigration specialist. After appealing we started contacting everybody trying to get a response as we had not received any updates since handing in our paperwork. We were promised a decision within eight weeks and we were by then on the 40th week.”
“It was painful because we took all of the steps and made sure we did everything right from the start. It felt like where did we go wrong? Who are we that they think we don’t deserve this? The law has been on our side. They would rather violate the law then honour our rights, what does that say? We are fighting for rights we were told we won over 10 years ago. When there is no systems and procedures to implement rights fairly and equally then there is no justice, and for that we will fight,” says Wendy.
“Eventually we started getting updates,” adds Nomfundo. “Unfortunately, the decision was a rejection for a study visa. But we had not applied for a study visa! We believe somebody just read the email being forwarded for us to get assistance and presumed it was for a study visa, not the spousal visa in question. We started calling lawyers and ended up getting the law firm that mentioned that they have another class action due to home affairs not consistently adhering to the law.
“Separate is never equal: we are inconvenienced by having to get a Civil Union Marriage instead of just changing the definition of marriage. Home Affairs uses the systems of apartheid to further discriminate against minorities.”
In February, the pair was informed by telephone that their third and final appeal would be rejected. It was already evening when they got the call from a Home Affairs representative to inform them. They have yet to receive the rejection in writing. When they queried why, the official stated that their personal circumstances differed from those of the other cases presented by the attorneys and as such the law “does not apply” to the Ngidi-Kessman case. Their case is indicative of systemic state-sanctioned homophobia and transphobia by the Department of Home Affairs in relation to marriage.
South Africa has two pieces of legislation that allow for marriage; the Marriage Act and the Civil Union Act. The main difference between the acts, is Section 9 of the Civil Union Act, which allows public servants to refuse to marry same-sex couples based on conscience or belief. In 2016 the Department for the first time released a list of Home Affairs offices across the country where same sex-couples would not be affected by this provision, and could marry.
Alarmingly, only 28% of Home Affairs offices offer this service. The Congress of the People (Cope) lodged an application in January 2018 with the office of the National Assembly speaker for amendment of this provision, arguing that Section 6 of the Civil Union Act is unconstitutional, and adversely affects rural couples in particular. On September 2017, the Western Cape High Court handed down judgment relating to transgender spouses who are married in terms of the Marriages Act 25 of 1961 and have subsequently applied to the Department of Home Affairs to alter their sex descriptor in terms of the Alteration of Sex Description and Sex Status Act 49 of 2003. The Department had been enforcing divorce as a pre-requisite to effecting gender marker changes, which was ruled as unconstitutional.
“We will take this as far as it goes, there is no other option,” says Wendy. “The High Court is the next step. How could we let them impact what we have? Never. We are stronger than that.
Iranti’s own pro-bono lawyer, Tshegofatso Phala of Webber Wentzel Linklaters Attorneys, has been put in touch with the couple and will continue to assist and advise going forward along with Craig Smiths, the lawfirm representing Nomfundo and Wendy. Iranti wholeheartedly condemns the cowardly actions of the Department of Home Affairs which appear to be a very clear case of discrimination based on sexual orientation. The Department has repeatedly failed to serve it’s LGBTI citizens, stripping them of dignity and hope, and has an equally atrocious history of failing foreign nationals residing within the borders of South Africa.
We call on Home Affairs to make this right, and to apply the law equally and fairly to all!
As for Wendy and Nomfundo, they are going nowhere. Rather than push them into submission, the ordeal has only strengthened their resolve to be together. For them, moving to the United States, Wendy’s country of birth, is not an option.
“People often see that we are different races before they see that we are a same sex couple. We get stares, but it is never something we let change how we are together,” says Wendy. “I will always hold her hand through the bus rank or in the mall; nothing makes me prouder than being on her arm. State endorsed racial violence is a main reason we don’t feel the US is where we want to be right now, it is not a safe space.”
“We want to have a family here, we want to help take care of our families, we want to further our education. We want to be able to visit and spend time with my family. I miss them. We want to build a house where the top floor is one big room just for us. When this visa thing is over, Nomfundo promised me we could get a puppy.”