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[2018] ZAECPEHC 24
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B N.O. v Minister of Home Affairs N.O. and Others (2665/2017) [2018] ZAECPEHC 24 (29 May 2018)

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Certain
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IN THE HIGH
COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 2665/2017
Date heard: 10 May 2018
Date delivered: 29 May 2018
In
the matter between
A.
B. H.
N.O.

Applicant
And
THE
MINISTER OF HOME AFFAIRS
N.O.

First Respondent
DIRECTOR
GENERAL OF HOME AFFAIRS
N.O.

Second Respondent
MR.
MZALISI
N.O.

Third
Respondent
JUDGMENT
GOOSEN,
J.
[1]
There
are presently three applications before this court. They relate to an
order made by Revelas J on 22 September 2017 (hereafter
the ‘main
application’), the details of which I shall set out hereunder.
The first application, in sequence, is one
in which the applicant
seeks to have the respondents committed for contempt of the order of
Revelas J. The second is an interlocutory
application in which the
applicant seeks to have one Deon Erasmus (hereafter ‘Erasmus’),
who is the Director of Legal
Services in the Department of Home
Affairs, joined as a fourth respondent in the contempt proceedings.
The third application is
one brought by the respondents for
rescission of the order of Revelas J.  I shall, for convenience,
refer to the parties as
they are cited in the main application.
[2]
The
underlying issue in these applications concerns the immigration
status of two minor orphaned children who are presently in the
care
of the Protea Child and Youth Care Centre by order of the Children’s
Court. The applicant is a registered social worker
employed by the
ACVV.
[1]
He has been appointed as the case worker for the minor children. He
acts in that capacity as well as in terms of s 38 (b) of the

Constitution read with s 15 (2) (b) of the Children’s Act, 38
of 2005.
[3]
The
children are E. N. (hereafter EN), a 14 year old girl, and G. N.
(GN), a 7 year old boy. EN is presumed to have been born in
the
Democratic Republic of the Congo (hereafter the DRC) on […]
2004. She came to South Africa with her biological mother,
D. T. N.
(hereafter ‘D.’) during or about 2010. The identity,
nationality and whereabouts of EN’s biological
father is
unknown.
[4]
Upon
her arrival in South Africa D. applied for asylum at the Port
Elizabeth Refugee Reception Office in terms of the
Refugees Act, 130
of 1998
. She was issued with a
section 22
temporary asylum seeker
permit which was extended from time to time.
[5]
According
to the last available extension
[2]
D.’ temporary asylum permit was set to expire on 22 September
2016. The reason for the extension is recorded as ‘awaiting

judicial review’. EN was also issued with a
section 22
permit
and it too, was extended from time to time. The extension of her
permit records as the reason that she is “accompanying
parent,
awiting judicial review to be finalised” (sic).
[6]
It
appears from D.’ asylum seeker permit that she was born on […]
1990. The permits record that EN was born on […]
2004.
[7]
While
living in South Africa D. met and entered into a relationship with Mr
S. M., who hails from Zimbabwe. As a result of this
relationship GN
was born in South Africa on […] 2011. GN’s birth was
reported. A handwritten Unabridged Birth Certificate
records the date
of birth and details of the mother. There are no details of the
father. Mr M. passed away on 10 June 2013. The
death certificate
records his citizenship as “RSA”. His country of birth is
recorded as Zimbabwe and his province of
birth as Manikaland
Province.
[8]
After
the death of Mr M., D. and the two children were cared for by a
Congolese Pastor, Mr T. and his wife. D.’ application
for
asylum status had been rejected by the Refugee Status Determination
Officer as ‘manifestly unfounded’. She had
however
pursued a review by the Standing Committee for Refugee Affairs (the
SCRA). Prior to the SCRA’s determination of the
review, D.
passed away on 6 August 2016.
[9]
Pastor
T. and his wife continued to care for the two minor children orphaned
by their mother’s death. They approached the
Cape Town Refugee
Centre for assistance and they were referred to the Nelson Mandela
Refugee Rights Centre. The latter Centre referred
the case to the
Department of Social Development and the ACVV. A case worker was
appointed and the children were placed in care.
In or about December
2016 they were placed at the Protea Youth Centre by order of the
Children’s Court. It is not necessary
for present purposes to
detail the steps taken by the social workers to facilitate contact
with possible family members in the
DRC or elsewhere. It suffices to
state that the Department of Social Development formed the view that
the two children should remain
together and that they should remain
in South Africa.
[10]
In
order to find a durable solution for the children the Refugee Rights
Centre made an application in terms of
s 31
(2) (b) of the
Immigration Act, 13 of 2002
on behalf of the children. That section
entitles the Minister to grant rights of permanent residence to a
foreigner when special
circumstances exist which would justify such a
decision. When no response to the application was received and
following demands
the applicant launched the main application on 8
August 2017.
[11]
The
main application was served on the respondents and no opposition was
noted. In the main application the applicant sought, inter
alia, an
order declaring the first respondent’s failure to consider and
decide on the application for exemption for EN to
be inconsistent
with the Constitution; to direct the first respondent to decide the
application; and to declare that GN is a South
African citizen in
terms of section 2 (2) of the South African Citizenship Act.
[12]
The
matter came before Revelas J on 21 September 2017. On that day the
learned judge heard full argument on the matter by applicant’s

counsel, Ms Crouse and, thereafter, on 22 September 2017 made the
following order:
1.
That
E. M. N. and G. N. are declared “unaccompanied minors”
for which a durable solution must be found in terms of South
Africa’s
international law obligations.
2.
That
the failure of the First Respondent to consider and decide upon E. M.
N.’s application for exemption as contemplated
in
Section 31
(2) (b) of the
Immigration Act 12 of 2002
, is declared to be
inconsistent with the Constitution of South Africa, 1996 and an
infringement of her right to lawful administrative
action.
3.
That
the First Respondent is directed:
3.1.
To consider and decide upon E. M. N.’s application for
exemption as contemplated in
section 31
(2) (b) of the
Immigration
Act 12 of 2002
within one month of the date of this order.
3.2
To inform the applicant’s attorneys and this Court in writing
within five days of the outcome of the said application
for
exemption, and in the event that the application is unsuccessful to
include the reasons in such notification.
4.
That G. N., born on […]  2011 is declared to be a South
African citizen by birth, as contemplated
in
section 2
(2) of the
South African Citizenship Act 88 of 1995
, as amended.
5.
That the respondents are ordered to give effect to the declaratory
order in the preceding paragraph by
ensuring:
5.1
that the particulars of birth of the minor child, G. N. are included
in the population register of South Africa, and
5.2
that the applicant is furnished with an amended birth certificate
pertaining to G. N. containing a valid identification
number
6.
That in the event of the respondents not being able to comply with
the orders set out in the preceding
paragraph, the third respondent
is directed to deliver and affidavit to this Court, after service
thereof on the applicant’s
attorneys, setting out such further
information needed and/or what steps are being taken by the
Department to comply with the order
within one month of the date of
this order.
7.
That this application is postponed to 7 November 2017 for:
7.1
Compliance by the first respondent with the order as set out in
paragraph 2 above;
7.2
Compliance by the third respondent with the order set out in
paragraph 5 above,
alternatively
by the first respondent with the order set out in sub-paragraph 7.2
above. (sic)
8.
That the applicant or any other interested person is entitled to
approach this Court on the same papers,
amended if so advised, to
obtain further relief in the best interest of E. M. N. and / or G. N.
and or to seek to review of the
first respondent’s decision in
respect of
section 32
(2) (b) exemption applications.
[13]
It
is this order which forms the subject of the contempt and joinder
application and the application for rescission brought by the

respondents. I shall, hereunder, deal first with the contempt
application (and the related joinder application) and thereafter
with
the rescission application.
The
contempt application
[14]
The
contempt application was commenced on 4 November 2017 and set down
for hearing on 7 November 2017, being the same date to which
the main
application was postponed for the purposes of filing the compliance
affidavits as directed.  The application was
postponed to 21
November and again to 28 November 2017. On that day a rule
nisi
was issued by Revelas J calling upon the respondents to show cause on
12 December 2017 why they should not be held to be in contempt
of the
order of 22 September 2017 and committed to imprisonment for such
contempt. On the return date the matter was again postponed
to 16
January 2018. Jaji J made an order directing the first and third
respondents to file a report by 9 January 2018 indicating
what steps
had been taken to ensure compliance with the court order. On 15
January 2018 the respondents commenced the rescission
application. It
appears that the contempt application was therefore postponed by
agreement from 16 January to 13 February 2018.
[15]
On
17 January 2018 the applicant launched an interlocutory application
to join Erasmus as the fourth respondent in the contempt
application.
This latter application was heard by Eksteen J on 18 January 2018. A
rule
nisi
was issued with 13 February 2018 as the return date. On 13 February
2018 both the contempt and joinder applications were postponed
to 20
February and thereafter, by agreement for hearing on 10 May 2018.
[16]
The
rule
nisi
issued on 28 November 2017 provides as follows:
1.
That
a rule
nisi
do issue calling upon the Respondents to show cause on the 12
th
December 2017 at 09h30 or so soon thereafter as the matter can be
heard, why an order in the following terms should not be made:
1.1
That
the First Respondent is declared to be in contempt of paragraphs 1 to
3 of the order of this court dated the 22
nd
September 2017, under the above mentioned case number.
1.2
That
the Second Respondent is declared in contempt of paragraphs 1.4 and
1.5 of the order of this court dated the 22
nd
September 2017, under the above case number. (sic)
1.3
That
the Third Respondent is declared to be in contempt of paragraphs 1,
4, 5 and 6 of the order of this court dated 22
nd
September under the above mentioned case number.
1.4
That
the Respondents are accordingly sentenced to undergo three months
imprisonment suspended for a period of three years from the
date of
this order on condition:
1.4.1
That
he/she forthwith take all such necessary to adhere to the court order
dated the 22
nd
September 2017, issued under the above mentioned case number.
1.4.2
That
he/she report to this Honourable Court, in writing within 10 days
after this order, what he / she has done to facilitate the
execution
of this order;
1.4.3
That
he / she is not again convicted of contempt of court committed within
this period of suspension.
2.
That
the Respondent are ordered to pay the costs of the application a
scale as between attorney and client. (sic)
[17]
The
applicant states in his founding affidavit that Revelas J’s
order of 22 September was served on the first and second respondent

by service on the office of the State Attorney on 27 September 2017.
Thereafter the sheriff was directed to serve the order upon
the first
respondent personally. The return of service indicates that service
was effected on a Mr Nthangeni, a legal clerk employed
at the head
office of the Department. The applicant also states that the court
order, together with a copy of the application for
exemption was sent
to the first respondent by registered mail. It appears that this item
was collected by E Mohale on 10 October
2017.
[18]
The
applicant accordingly asserts that the first and second respondents
have personal knowledge of the order. He alleges that the
first
respondent, as at the date of the launch of the contempt application,
had failed to give effect to the order. I will return
to this
hereunder.
[19]
In
regard to the conduct of the third respondent who was required to
give effect to paragraphs 4 and 5 of the order of 22 September
[3]
,
the applicant states that he attended at the offices of the
Department in Port Elizabeth on 25 October 2017, together with GN,
in
order to register the minor as a South African citizen. He requested
the assistance of a Mrs Bloem who had previously assisted
the
applicant. She did not assist them. Instead they dealt with the third
respondent to whom they gave a copy of the court order.
He is alleged
to have said that he has a period of 7 days to respond to the order,
an allegation that the third respondent denies.
In any event, on 2
November the applicant telephoned the third respondent to enquire
about the registration of GN. He was told
to contact Mrs Bloem.
[20]
Based
on these allegations the applicant contends that the respondents are
in contempt of the court order and that the court ought
to impose the
punishment set out in the notice of motion.
[21]
The
third respondent deposed to and filed an affidavit on 9 January as
directed by Jaji J on 13 December. He states that he is the
acting
office manager of the Port Elizabeth office of the Department. He
points out that he had filed an affidavit dated 13 December
2017 as
he was required to do in terms of the court order of 22 September. He
explained both why the affidavit was filed on that
date and the
reasons for his non-compliance with paragraphs 4 and 5 of the order
of Revelas J.  In his affidavit of 9 January
he repeats the
explanation.
[4]
[22]
He
states that he received notice of the court order from Ms Botha of
the State Attorney’s office on 28 September 2017.
He has
no delegated authority to deal with legal matters and is required to
defer to Legal Services within the Department based
at the Pretoria
head office. He states that he was uncertain how to comply with the
order since, at face value the provisions of
section 2 (2) of the
Citizenship Act do not apply to GN. He was awaiting direction from
Legal Services in this regard. He states
that the applicant visited
the Department’s offices on 25 October. He denies that he told
the applicant that he has seven
days to respond to the order. By 3
November 2017 he had become concerned that he had not yet received
any directives from Legal
Services as to what steps needed to be
taken. He therefore contacted a senior legal advisor. He was told
that a legal advisor would
be assigned to the case.
[23]
On
6 November 2017 he received a copy of the contempt application. He
immediately arranged a consultation with the State Attorney
which
took place on 7 November. In this consultation he explained what he
considered to be a conflict between terms of the order
and section
2(2) of the Citizenship Act. What followed was correspondence
relating to a postponement. At that stage Ms Botha of
the State
Attorney had still not received instructions regarding the contempt
application.
[24]
On
4 December 2017, the third respondent received an email from
applicant’s attorneys advising him of the rule nisi which
was
granted on 28 November. He immediately contacted Mr Wittes of Legal
Services to seek his urgent advice. On 11 December 2017
Mr Wittes
contacted the State Attorney and advised that a submission had been
made to the Minister and that they were awaiting
his signature to
finalise the matter. According to third respondent he understood that
this meant that all issues had been resolved.
During the court
proceedings on 12 December 2018 Legal Services sent an email to the
State Attorney relating to the submission
to the Minister. He
realised then that the submission related to compliance with
paragraph 3 of the order, i.e. to the exemption
to be granted by the
Minister. He therefore contacted the legal advisor assigned to the
matter who advised him that he should proceed
to issue an amended
birth certificate to GN in compliance with paragraphs 4 and 5 of the
order. He states that this was the first
time that he had received
instructions relating to the matter.
[25]
He
therefore immediately attempted to issue the amended birth
certificate. However, the Department’s computer system did not

allow for such entry. He contacted his head office and explained the
problem. He was told that the system has not been programmed
to deal
with such an instance and that a special function would need to be
created in order to allow it to take place. He states
that he has
neither the knowledge nor the authority to create such a special
function.
[26]
The
explanation is repeated in the affidavit of 9 January except that it
contains further averments regarding the subsequent steps
taken to
give effect to paragraph 5 of the order. These are that officials in
the Legal Services department corresponded with senior
officials in
the Department in order to address the difficulty encountered in
issuing an amended birth certificate to GN. In response
the Director:
Births, Marriages, Deaths & Records advised, on 8 January 2018,
that it is not possible to comply with paragraph
5 of the court
order.  Instructions were then given to the State Attorney to
appoint counsel and to apply for a variation
or rescission of the
order of 22 September 2017.
[27]
I
shall deal with the rescission application hereunder. For present
purposes it should be stated that the rescission application
is
confined to paragraphs 4 and 5 of Revelas J’s order. It was
stated in the founding affidavit that the application for
exemption
(as contemplated in paragraph 3 of the order) is under consideration
by the Minister. By the time that the applications
were argued before
this court the first respondent had granted an exemption in terms of
section 31
(2) (b) of the
Immigration Act to
EN.
[28]
At
the hearing of the applications Ms Crouse, for the applicant, stated
that she was not seeking an order for contempt at that stage.
Instead
she was pursuing the joinder of Erasmus, as the fourth respondent, in
order to ensure that service of the order (of 22
September 2017)
could be personally effected on first and second respondents since
that had not yet been achieved. In the event
that the joinder of
Erasmus is ordered, she was seeking a postponement of the contempt
application. Mr Cassim, for the respondents
argued that the joinder
of Erasmus was inappropriate inasmuch as it amounted to an order of
substituted service. He further argued
that no purpose would be
served by such order since the application for contempt against the
first and second respondents is fatally
defective by reason of them
not having been cited in their personal capacities.
[29]
It
is against this backdrop that I briefly turn to the joinder
application. One would be forgiven for gaining the impression that

the litigation is labyrinthine, with new twists and turns at every
juncture. Ms Crouse contended that this was on account of the
fact
that the Department had frustrated attempts at service and had
adopted an obfuscatory approach. Mr Cassim contended that it
was
because the incorrect procedure had been followed.
[30]
The
applicant seeks to have Erasmus joined in the contempt proceedings as
fourth respondent for the purpose of ensuring that the
order of 22
September 2017, and any other related orders, are served on the first
and second respondents personally. Erasmus is
the Chief Director:
Legal Services in the Department.
[31]
In
the founding affidavit applicant’s attorney, Ms Fourie, states
that it is not possible to seek an order of contempt without
the
order having come to the knowledge of the first and second
respondent. She further states the applicant has not been able to

secure personal service of the order. The return of service in
relation to original order reflects service on a legal clerk. After

obtaining the rule nisi on 28 November 2017 service was again
attempted. The sheriff was instructed to serve the order personally

on the Minister. The return however, reflects service on a Ms Kabini,
another legal clerk.
[32]
Ms
Fourie states that within the Department a person of the rank below
that of a Chief Director does not have access to either the
first or
second respondent. It is for this reason that the applicant seeks to
join Erasmus, notwithstanding that he does not work
in the same
section as the second respondent.
[33]
The
respondents and Erasmus oppose the application on the basis that the
applicant has not made out a case that it is impossible
to serve the
order personally on the first and second respondent and on the basis
that Erasmus is not the appropriate official
to attend to service of
the order upon the first and second respondents.
[34]
In
the opposing affidavit Erasmus states that the applicant seeks to
have the first and second respondents held in contempt and
to have
them committed for such attempt. Yet neither of the respondents has
been cited in their personal capacities in the application.
Since no
finding of contempt will be confirmed upon the return date in such
circumstances, there is no good reason why he should
be joined in the
application. He further states that the sheriff is authorised to
effect service and that the applicants have provided
no explanation
for why the sheriff did not effect personal service. To the extent
that personal service is ‘impossible’
the proper course
is to apply for an order authorising substituted service. Erasmus
points out that the second respondent is the
administrative head of
the department. Below him are deputy directors general each
overseeing designated functional areas.
Below these are Chief
Directors also with their assigned and designated areas of
responsibility. The lines of communication are
such that he is
required to report to his immediate superior. He accordingly does not
have access to a Deputy Director or the Director
General other than
via his line function superior. He also does not have direct and
ready access to the Minister. He therefore
states that he is not the
appropriate official to attend to service of court process upon the
second and first respondent.
[35]
Rule
23(n) of the Eastern Cape Rules of Practice provides that,
Save
for matters in which substituted service has been authorised,
personal service of process will be required in divorce actions,

applications for sequestration and contempt of court proceedings.
[36]
Rule
4(2) provides for circumstances where it is not possible to effect
service. In such instance application may be made for directions
as
to substituted service, and the provisions of section 5(2) apply. In
order to obtain such order of substituted service the applicant
must
show that it is not possible to obtain service as is required (in
this instance personal service); that the court has jurisdiction;

that the applicant has a
prima
facie
case; and that there is a reasonable likelihood that the proposed
service will result in the process coming to the knowledge of
the
respondent or defendant.
[37]
The
procedure employed by the applicant is one of joinder, rather than
one seeking authority to serve by way of substituted service.
The
relief sought however is akin to one of substituted service.  In
my view therefore the requirements for authorised substituted
service
should be established.
[38]
The
applicant states only that it has been ‘impossible’ to
obtain personal service. It appears that there was only one
attempt
made in relation to each instance. The returns do not indicate that
service of the order could not be effected personally.
They state
merely that service was effected upon a named person at the place of
business of the respondents.  In my view the
applicants falls
short in this regard.
[39]
There
is however a more significant difficulty. Erasmus states that he does
not have access to the second respondent except via
his line function
superiors. He also states that he does not have access to the first
respondent. There is therefore an established
difficulty with the
procedure envisaged. I am not satisfied, having regard to the
explanation given by Erasmus that the process
which is contemplated
by the order sought will bring about personal service upon the first
and second respondents. Furthermore,
neither the first nor second
respondent is cited in these proceedings in their personal capacity.
There is therefore an insuperable
difficulty, even if service is
effected personally, to the granting of punitive or coercive orders
against the first and second
respondent for alleged contempt.
[40]
The
Constitutional Court recently had occasion to set out comprehensively
the law relating to civil contempt of court in
Matjhabeng
Local Municipality v Eskom Holdings ltd and others; Mkhonto and
others v Compensation Solutions (Pty) Ltd
(“
Matjhabeng
”).
[5]
In that matter the court was concerned inter alia with the procedures
to be applied in civil contempt; the standard of proof required
and
the question as to the joinder of the alleged contemnor in his / her
personal capacity. The court stated that,
[6]
The
procedure and processes for contempt proceedings seeking committal
should deviate from criminal prosecutions only to the extent

necessary to make allowance for its unique status. In
Pheko II
,
this Court endorsed the holding in
Fakie
that, because
contempt proceedings resulting in committal combine civil and
criminal elements, “it seems undesireable to
strait-jacket it
into the protections expressly designed for a criminal accused under
section 35 (3) [of the Constitution]”.
Instead, the rights of a
respondent where civil contempt is sought are grounded in section
12(1) of the Constitution which affords
the alleged contemnors both
substantive and procedural protections. I do not understand this to
suggest that the rights of a respondent
where civil contempt in
committal is sought cannot be grounded in section 35 (3).
(Footnotes
omitted)
[41]
It
is not necessary for present purposes to address the court’s
findings in regard to the different standard of proof that
may apply
depending upon the nature of the relief sought. Of significance for
present purposes is the court’s findings regarding
the
necessity to join an official against whom a finding of contempt and
committal is sought, in his or her personal capacity.
The
court’s reasoning is set out as follows:
[7]
The
law on joinder is well settled. No court can make findings adverse to
any person’s interests, without that person first
being a party
to the proceedings before it. The purpose of this requirement is to
ensure that the person in question knows of the
complaint so that
they can enlist Counsel, gather evidence in support of their
position, and prepare themselves adequately in the
knowledge that
there are personal consequences – including a penalty of
committal – for their non-compliance. All of
these entitlements
are fundamental to ensuring that potential contemnors’ rights
to freedom and security of the person are,
in the end, not
arbitrarily deprived.
The
principles which fundamental to judicial adjudication, in a
constitutional order, were reaffirmed by this Court in its recent

decision in
Lushaba
,
where the Court,
per
Jafta J, endorsed the principles stated by Ackermann J in
De
Lange
:
“
[F]air
procedure is designed to prevent arbitrariness in the outcome of the
decision. The time-honoured principles that …
the other side
should be heard [
audi
alteram partem
],
aim toward eliminating the proscribed arbitrariness in a way that
gives content to the rule of law. … Everyone has the
right to
state his or her own case, not because his or her version is right,
and must be accepted, but because in evaluating the
cogency of any
argument, the arbiter, still a fallible human being, must be informed
about the points of view of both parties in
order to stand any real
chance of coming up with an objectively justifiable conclusion that
is anything more than a chance. Absent
these central and core
notions, any procedure that touches in an enduring and far-reaching
manner on a vital human interest, like
personal freedom, tugs at the
strings of what I feel is just, and points in the direction of a
violation.”
It
follows that the objection of non-joinder by the Municipality in
Matjhabeng
,
specifically where the potential contemnor’s section 12(1)
rights are in the balance, is not a purely idle or technical
one –
taken simply to cause delays and not from a real concern to safeguard
the rights of those concerned. There is however
a caveat: this should
not be understood to suggest that joinder is always necessary. There
may well be a situation where joinder
is unnecessary, for example,
when a rule
nisi
is issued, calling upon those concerned to appear and defend a charge
or indictment against them. Undeniably, in appropriate circumstances

a rule
nisi
may be adequate even when there is non-joinder in contempt of court
proceedings. This means that the rule is not inflexible.
(Footnotes
omitted)
[42]
The
Constitutional Court proceeded to consider an argument (not advanced
in the present case but which is nevertheless relevant)
that the
issue of a rule
nisi
in
Matjhabeng
meant that the person was in effect joined. The court considered four
cases
[8]
upon which reliance was placed. It concluded that those judgments
(referenced below) were not authority for the proposition that
the
joinder of an official in his / her personal capacity was not
required. The court furthermore distinguished those instances
where a
rule
nisi
had been employed, principally on the basis that the procedure was
convenient where a substantial number of parties might be affected.

It found that that consideration did not apply since there was, in
each case before it, only one person as an alleged contemnor
who
should have been joined.
[43]
Similar
considerations apply in this instance where there are only two
persons whose rights are affected. Accordingly the fact that
a rule
nisi
was issued on 28 November 2017 calling upon the respondents to show
cause why they should not be held in contempt and committed
does not
meet the requirement that the first and second respondents ought to
have been joined in their personal capacities.
[44]
The
effect of this is that applicant’s application for contempt
against the first and second respondents is not only defective
for
want of adequate proof of service (which the joinder seeks to
remedy), it is fatally defective for want of joinder of the first
and
second respondents in their personal capacities.
[45]
The
applicant did not, despite the issue being pertinently raised in
opposition to the joinder of Erasmus, seek a postponement to
effect
such joinder. To the contrary, an argument was advanced that Erasmus
has no authority to raise such objection on behalf
of the first and
second respondent. This rather missed the point made by Erasmus in
his opposing affidavit and by counsel in argument
on behalf of the
respondents. Erasmus raised this defect as a ground for refusing his
joinder in an application that is defective.
This he was entitled to
do.
[46]
In
my view the objection to the joinder of Erasmus is a sound one. The
applicant has not, in my view, made out a proper case for
joining
Erasmus in order to effect service of the original order (and any
other order) upon the first and second respondent. In
any event such
joinder would not bring about a situation where a court, considering
the application for committal of the first
and second respondents in
due course could grant such order.
[47]
As
was noted in
Matjhabeng
[9]
courts have the inherent power at common law to order the joinder of
parties even where there is no substantive application for
joinder.
In this matter however it will not be appropriate to make an order
either joining parties or postponing the application
so that such
joinder may be effected.
[48]
There
are two reasons for this. Firstly, it is common cause that the first
respondent has complied with paragraph 3 of the order
made by Revelas
J on 22 September 2017, albeit after the contempt application was
launched.
[49]
The
second reason lies in the explanation presented by the third
respondent for the non-compliance with the terms of paragraphs
4 and
5 of the order and the fact that there is, based upon the alleged
impossibility of performance, an application for rescission
of the
judgment. I have set out the explanation hereinabove. Even though it
may be susceptible of criticism, it is an explanation
which on the
face of it negatives a finding of wilful and
mala
fide
disobedience.  It is therefore to be strongly doubted that a
postponement of the application to permit joinder of the first
and
second respondents personally would serve any purpose. If the
respondent’s contentions in regard to the rescission of
the
judgment are not upheld, then in that event the obligation to comply
with the order will be affirmed. Such previous conduct
as was based
on the contention that the order cannot be complied with, will
naturally no longer avail the respondents and their
future conduct in
giving effect to the order will have to be appraised upon a different
set of facts.
[50]
It
follows from this that, in the first instance, the application for
joinder must be refused. It follows also from the reasons
set out
above that the application for contempt must be refused. The only
question in regard to both applications is the appropriate
costs
order to be made.
[51]
The
applicant is clearly motivated by a desire to protect and promote the
best interests of the minor children concerned. Counsel
for the
applicant rightly pointed to the fact that Government of the Republic
of South Africa is under international obligation
to protect the
rights of children who are, to all intents and purposes, stateless.
The declaratory order granted by Revelas J on
22 September declared
the children to be in need of a ‘durable solution’. Our
Constitution requires that best interests
of minor children are
paramount in all matters affecting a child. The delay in dealing with
the issues raised and the bureaucratic
obfuscation evidenced by the
manner in which the children have been dealt with all point to a
failure to properly and fully give
effect to the rights and interest
of the children. This is not the first instance where an alleged
inability to comply with a declaratory
order made in terms of section
2 (2) of the Citizenship Act has arisen. Similar contentions were
raised in the matter of
Richard
Cathcart NO v Director General of Home Affairs and others
in which this court remarked on the Department’s obfuscatory
approach.
[10]
[52]
The
assertion that the order cannot be carried into effect because the
computer system makes no provision for capturing the details
on the
system need only be stated to be rejected as spurious. I shall touch
on this more fully in dealing with the rescission application

hereunder. For the present, a contention that a computer system does
not allow for effect to be given to a court’s declaratory
order
is extraordinary. It suggests a woeful abdication of human agency in
the face of a computer system designed to give effect
to the law.
[53]
In
the light of this I consider it appropriate, as a mark of this
court’s displeasure, to deprive the respondents of their
costs
in the joinder and contempt applications. It will therefore be just
and equitable that each party pay their own costs in
respect of these
applications.
The
rescission application
[54]
I
turn now to the rescission application. The respondents seek only an
order that paragraphs 4 and 5 of the order of 22 September
2017. The
essence of the application for rescission is to be found in the
following passages of the founding affidavit:
38.
Accordingly, save for Glory having been born in South Africa, and to
date having lived his young life here, for purposes
of the acquiring
of citizenship, he does not meet the requirements of section 2 (2)
(a) of the Citizenship Act in that, he is,
in the laws applicable in
the Democratic Republic of the Congo, regarded as a citizen of that
country and / or at the very least,
has a right to such citizenship.
He has no similar entitlement to South African citizenship.
39.
In these circumstances the court
a
quo
erred in finding that section 2 92) of the Citizenship Act could come
to Glory’s assistance and in compelling the Department
to grant
him citizenship in terms of that subsection.
40.
By granting the order she did, the learned Judge Revelas erred as her
order in paragraphs 4 and 5 thereof was not legally
competent, was
and is without legal foundation and ought to be rescinded in part and
thus varied in its entirety.
41.
For sake of completion (sic), I point out that the order granted in
paragraph 5, pertaining to the entry on the population
register of
Glory’s details and the issuing to him of an identity number
are also prohibited by legislation on the facts
of this case.
[55]
The
deponent then sets out the provisions of
section 5
of the
Births and
Deaths Registration Act, 51 of 1992
and avers that it precludes the
entry of the child GN’s details into the population register
because he is not a citizen
of the Republic.
[56]
It
will be seen that the basis of the rescission application is that the
learned judge erred in law and fact in granting the order.
Rule 42
(1) (a) provides that,
The
court may, in addition to any other powers it may have,
mero motu
or upon the application of any party, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of a party affected thereby;
[57]
There
is no challenge to the procedural aspects. It appears from the
affidavit explaining the respondents’ default that the

application was properly served and that the State Attorney had made
numerous attempts to obtain instructions without success.
It is
accordingly conceded that the application was properly before Revelas
J and that the learned judge was entitled to consider
and grant
relief against the respondents in their absence.
[58]
Harms
[11]
states that:
An
order is erroneously granted if it was legally incompetent for the
court to have made such an order, if there was an irregularity
in the
proceedings or if the court was unaware of facts, if known to it,
would have precluded it from a procedural point of view
from making
the order. When a simple summons lacked averments to support the
cause of action the judgment based on it is without
foundation and
consequently erroneously granted. The error need not appear
ex
facie
the record. But this does not mean that if a party is
procedurally entitled to judgment it could be said that the judgment
had
been granted erroneously because the court was unaware of a
defence which the defendant could have raised but did not.
Consequently,
a iustus error
, even if induced by a
non-fraudulent misrepresentation by the successful litigant, does not
entitle a party to have the judgment
set aside.
(Footnotes
omitted)
[59]
In
Marais
v Standard Credit Corporation Ltd
[12]
it was held that the term ‘erroneously’ is wide enough to
include an instance where for want of an essential averment
the
summons (or founding affidavit) does not establish a cause of action.
In such situation there is no legal foundation to the
judgment and it
is erroneously granted. Mr Cassim, for the respondents, argued that
this includes an incorrect averment or submission
in law. I disagree.
As pointed out in the passage from
Harms
above, a non-fraudulent misrepresentation of fact – what would
qualify as an incorrect averment in the papers – which
induces
an error (on the part of the judge granting the order) does not
entitle the party to obtain rescission of the judgment.
[60]
Counsel’s
argument focused upon the set of facts before the learned judge,
seeking to distinguish the situation form that
which pertained in the
Cathcart
[13]
matter, arguing that on the facts as disclosed by the applicant, GN,
as a matter of law is not entitled to South African citizenship.
It
was therefore submitted that the error was such as to render the
order ‘erroneously granted’ and that it should
therefore
be set aside to the extent prayed.
[61]
I
do not agree. Whether or not the learned judge erred in her appraisal
of the facts or whether she erred in the application or

interpretation of section 2 (2) of the Citizenship Act is a matter to
be addressed on appeal. The learned judge heard full argument
in
relation to the application before her and thereafter granted the
order. Even if it is to be assumed that there was an error
(which I
do not find) such error does not render the judgment ‘erroneously
granted’.
[14]
Accordingly on this basis, the application for rescission cannot
succeed.
[62]
The
respondents however asserted a further ground, namely that the relief
in paragraph 5 of the order, is prohibited by the
Births and Deaths
Registration Act. Section
5 of the latter Act provides as follows:
(1)
The
Director-General shall be the custodian of all –
(a)
documents
relating to births and deaths required to be furnished under this Act
or any other law; and
(b)
records
of any births and deaths preserved, prior to the commencement of this
Act, in terms of the Acts repealed by this Act.
(2)
Particulars
obtained from the documents referred to in subsection (1) (a) shall
be included in the population register and such
inclusion is the
registration of the births and deaths concerned.
(3)
In
the case of a non-South African citizen who sojourns temporarily in
the Republic, particulars obtained from documents mentioned
in
subsection (1) (a) shall not be included in the population register
and the issuing of a certificate in respect of such particulars
is
the registration thereof.
[63]
The
respondents relied on
section 5(3)
above, asserting that it applies
to GN and accordingly, as a matter of law, his details cannot be
entered into the population register.
[64]
The
assertion is without any merit. It proceeds from an entirely
incorrect reading of the section and, furthermore, a disregard
of the
effect of the declaratory order made by Revelas J in paragraph 4 of
the order which, it bears repeating, provides,
That
G. N., born on 10 January 2011 is declared to be a South African
citizen by birth, as contemplated in
section 2(2)
of the
South
African Citizenship Act 88 of 1995
, as amended.
[65]
GN’s
status as a citizen of South Africa is determined by the order. It is
not dependent upon registration or even acceptance
by the
respondents. As a matter of law, from the date of the order, GN was
and is a citizen. Thus, at the point at which effect
is to be given
to the order, pursuant to paragraph 5 thereof, GN was not ‘a
non-South African citizen who sojourns temporarily
in the Republic’.
Section 5(3)
therefore finds no application. It certainly does not
render paragraph 4 or 5 of the order ‘incompetent’ and
therefore,
susceptible to rescission.
[66]
It
follows that the respondents’ application for rescission cannot
succeed. There is no reason why the costs should not follow
the
result.
[67]
In
conclusion, it is apposite to remark briefly on the underlying issue
which animates this litigation, namely the fraught attempts
to secure
appropriate protection of the children’s rights. It is not
necessary to spell out the international obligations
which attach to
situations such as these where undocumented children are unable to
assert their rights to nationality and citizenship.
I have already
stated that the paramount best interests of the children, which
accord with the State’s international law
obligations, ought to
direct the respondents’ actions in regard to compliance with
the order made on 22 September 2017. It
is to be hoped that the first
respondent will take due and proper cogniscance of these obligations
and that the second respondent,
as the administrative head of the
Department, will act with proper expedition to ensure that any such
impediments to carrying out
the terms of paragraph 5 of the order, as
may exist, are resolved.
[68]
In
the light of the circumstances which gave rise to the application for
contempt and the interlocutory application to join a fourth

respondent, I intend to make an order directing the second respondent
to take steps necessary to ensure compliance with paragraph
4 and 5
of the order and to report to the court on the steps taken.  The
respondents are of course represented in these proceedings
by the
State Attorney and by senior and junior counsel. It is to be expected
therefore that the State Attorney will advise each
of the respondents
of the outcome and what is expected of them in relation to compliance
with the original order. In the circumstances
the State Attorney will
be also be directed to provide a copy of the judgment to each of the
respondents and to file an affidavit
with the Registrar setting out
the method by which and the date upon which same was done.
[69]
In
the result I make the following orders:
1.
The
rule
nisi
dated 18 January 2018 issued in the applicant’s joinder
application is discharged.
2.
The
rule
nisi
dated
28 November 2017 issued in the applicant’s contempt of court
application is discharged.
3.
Each
party is to pay their own costs in relation to the joinder and
contempt applications.
4.
The
respondents’ application for rescission of the Order of Revelas
J dated 22 September 2017 is dismissed with costs.
5.
The
second respondent is ordered to take all steps necessary to give
immediate effect to paragraphs 4 and 5 of the Order dated 22

September 2017 and, no later than 15 days after the date of this
order, to deliver to the applicant’s attorneys and to file
with
the Registrar of this Court an affidavit setting out the steps taken
to comply with outstanding obligations imposed by the
Order of 22
September 2017.
6.
Service
of this Order is to be effected upon the second respondent c/o the
State Attorney, Port Elizabeth.
7.
The
State Attorney is directed to provide copies of the judgment and
Order to the respondents and is further directed to deliver
to the
applicant’s attorneys and to file with the Registrar of this
Court an affidavit setting out the method by which and
the date upon
which same was done.
______________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv. L.
Crouse
Instructed
by Legal Aid South Africa
(Port
Elizabeth)
For the
Respondents
Adv. N. A.
Cassim SC
(Assisted by
Adv. S. Freese & Adv. G. Appels)
Instructed
by State Attorney, Port Elizabeth
[1]
The
organisation, previously known as the Afrikaanse Christelike Vroue
Vereeninging, is a non-profit organisation which provides,
inter
alia, extensive social work and child protection services for
children.
[2]
It appears
that 9 extensions were issued following the original permit issued
in Port Elizabeth on 14 June 2010.
[3]
The
reference in the order (as quoted) to paragraphs 1.4 and 1.5 is
clearly an error and ought to read paragraphs 4 and 5.
[4]
It is not
clear whether the affidavit of 13 December 2017 was placed before
Jaji J. Had it been the learned judge would no doubt
not have
required a further affidavit to be filed.
[5]
2017 (11)
BCLR 1408 (CC)
[6]
At par [58]
[7]
At para
[92] – [94]
[8]
Isamcor
(Pty) Ltd v Dorbyl Light & General Engineering (Pty) Ltd, Dorbyl
Light & General Engineering (Pty) Ltd v Isamcor
(Pty) Ltd
2007
(4) SA 467
(SCA) (“
Isamco
r”)
;
Meadow
Glen Homeowners Association v City of Tshwane Metropolitan
Municipality
2015 (2) SA 413
(SCA) (“
Meadow
Glen”
)
;
City
of Johannesburg Metropolitan Municipality v Hlophe
[2015] 2 AllSA 251
(SCA) (“
Hlophe”
);
Pheko
and others v Ekurhuleni Metropolitan municipality (Socio-Economic
rights Institute of South Africa as amicus curiae) (No
2)
2015 (5) SA 600
(CC) (“
Pheko
II
”).
[9]
At par [91]
[10]
Case no
993/2017 & 11/2016, ZAECPHC, Unreported, Delivered 3 May 2018
[11]
Civil
Procedure in the Superior Courts
at B42.4
[12]
2002 (4) SA
892
(W) at 897A-B
[13]
Cathcart
NO
fn 10 above
[14]
Similar
arguments were advanced and rejected in the
Cathcart
NO
matter.
No appeal has been noted against that judgment.