In particular, provisions of the Aliens Control Act, 1991 were found to be inconsistent with the right to dignity insofar as they permitted immigration officials wide discretion to refuse residence permits to the foreign spouses of South Africans, thereby undermining the ability of married couples to cohabitate.

They laid suit in the High Court of South Africa against the Minister of Home Affairs and proximate state officials, challenging the constitutionality of the immigration process as governed by that Act; their applications were heard together in the High Court's Cape Provincial Division.

She described their withdrawal as "inconvenient and discourteous",[1] and their lack of representation as "much more serious" insofar as the court required the state's input in formulating any ancillary orders, even if the application itself was unopposed.

Legislation which significantly impairs the ability of spouses to cohabitate therefore constitutes a limitation on the right to dignity.

O'Regan agreed with the High Court that the Aliens Control Act impaired the ability of spouses to cohabitate.

This absence of explicit criteria introduced an element of arbitrariness that was inconsistent with the constitutional protection of the right to marry and establish a family.