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[2021] ZASCA 58
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Nwafor v Minister of Home Affairs and Others (1363/2019) [2021] ZASCA 58 (12 May 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1363/2019
In the matter
between:
ANTHONY OKEY
NWAFOR
APPELLANT
and
THE MINISTER OF
HOME AFFAIRS
FIRST RESPONDENT
THE DIRECTOR
GENERAL:
DEPARTMENT OF
HOME AFFAIRS
SECOND RESPONDENT
DEPARTMENT OF
HOME AFFAIRS
THIRD RESPONDENT
Neutral
citation:
Nwafor
v The Minister of Home Affairs and Others
(1363/2019)
[2021] ZASCA 58
(12 May 2021)
Coram:
MBHA,
ZONDI and MBATHA JJA and GORVEN and POYO- DLWATI AJJA
Heard:
09
March 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be have been at 14h00 on
12 May 2021.
Summary
:
Civil Procedure – Section 17(2)(
d
)
of the Superior Courts Act 10 of 2013 (the Act) – oral hearing
– application for leave to appeal against refusal by
court a
quo to grant leave to appeal – no reasonable prospect of
success of the appeal established as required by s 17(1)(
a
)
of the Act – application dismissed with costs.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Potterill
J
sitting as
the
court of first instance
):
The application is
dismissed with costs, such costs to include the costs of two counsel.
JUDGMENT
Mbha JA (Zondi
and Mbatha JJA, and Gorven and Poyo-Dlwati AJJA concurring)
[1]
The applicant seeks leave from this Court to appeal against the
judgment and order of the High Court,
Gauteng Division, Pretoria
(Potterill J) which she had granted on 27 June 2019.
In terms of this judgment, Potterill J
dismissed with costs the
applicant’s application for an order to review and set aside
the first and second respondents’
(the respondents) decision to
deprive the applicant and his minor children of their citizenship in
the Republic of South Africa.
[2]
This application, which is opposed, has been set down pursuant to an
order issued by this Court (Navsa JA
and Koen AJA) on
31 March 2020, referring the application for leave to
appeal, together with condonation for the late
lodgement therefor,
for oral argument in terms of s 17 (2)(
d
) of the
Superior Courts Act 10 of 2013 (the Act). The parties were also
forewarned in the same order, to be prepared, if called
upon to do
so, to address this court on the merits. It bears mentioning that
condonation is no longer an issue as this was resolved
by the parties
at the commencement of the hearing.
[3]
At the core of this dispute, is the applicant’s complaint that
he and his family including his
minor children, have been arbitrarily
and unlawfully deprived of their citizenship by the respondents,
without being afforded an
opportunity to be heard and in breach of
the well-entrenched principle of natural justice, the
audi alteram partem
rule. This particular
deprivation, the applicant alleges further, is exacerbated by the
respondents’ failure to so much as
afford them a hearing before
taking such a drastic step of revoking their citizenship.
[4]
It is necessary to set out the background and factual matrix against
which the dispute arose, and the
litigation path that the matter has
travelled. The applicant was born in Lagos, Nigeria on 16 April 1965.
He acquired
South African citizenship upon being granted a
certificate of naturalisation (the certificate) by the
Department of Home Affairs
(the department), on
13 October 2009, which was issued in terms of s 5 of
the South African Citizenship Act
88 of 1995 (the Citizenship
Act).
[5]
The granting of the aforementioned certificate was preceded by the
issuing by the department to the
applicant, on 22 January 2004, of a
permanent residence permit (the exemption certificate) with reference
numbers LEB/42/2003,
in terms of s 28(2) of the Aliens Control
Act 96 of 1991(the Aliens Act). This exemption certificate clothed
the applicant
with the right to acquire permanent residence in the
Republic. It is common cause that the applicant secured the grant of
this
exemption certificate on the strength of his marriage to a
South African citizen, Ms Gladys Sibongile Vilankulo
(Ms Vilankulo),
on 25 April 2003. The validity of this
marriage is strenuously disputed.
[6]
On 13 April 2016, the department sent a letter addressed to the
applicant and his family, advising that
the Minister of Home Affairs
(the Minister) intended to deprive him and his minor children of
their South African citizenship.
The Minister’s intended
action was based on the following grounds:
(a)
that
the applicant had obtained the permanent residence permit by means of
a false representation by concealing the material fact
that he was
still married to Mrs Amarachukwu Ebare Nwafor (Ms Nwafor),
who he married in Nigeria on 1 March 2003,
when he
purported to marry Ms Vilankulo in South Africa on
25 April 2003, and while presenting himself as a bachelor
at the time;
(b)
that
the applicant’s marriage to Ms Vilankulo on 25 April 2003
took place when Ms Vilankulo was still
a minor without the
requisite permission from her guardian; and
(c)
that
the aforesaid permanent residence permit was issued to the applicant
in conflict with the applicable law in that it was issued
on
22 January 2004, in terms of the Aliens Act but subsequent
to its repeal by the Immigration Act 13 of 2004 (the
Immigration
Act), on 12 March 2003.
[7]
In the same letter, the applicant was informed that in terms of s 3
of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), he
was entitled, within ten calendar days from the date of receipt of
the letter, to make representations
to the Minister setting out
reasons why the Minister should not proceed with the intended
deprivation of citizenship. Importantly,
the applicant could approach
the high court in terms of s 25 of the Citizenship Act,
to review the decision made
by the Minister.
[8]
On 3 May 2016, representations were made in a letter
written on the applicant’s behalf
through his lawyers, in
response to the department’s aforesaid letter of 13 April 2016.
The salient points made
in the letter which was addressed to the
Minister, and copied to the Director General of the department, were
the following:
(a)
It
was denied that the applicant obtained his permanent residence permit
by means of a false representation by concealing his prior
marriage
to Ms Nwafor in Nigeria on 01 March 2003, and that he
had presented himself as a ‘bachelor’
when he married
Ms Vilankulo in South Africa on 25 April 2003. An
explanation proffered was that shortly after
‘a church
blessing’ between the applicant and Ms Nwafor, a serious
material issue occurred which affected the
marital relationship
resulting in the
immediate
dissolution of the said marriage.
(b)
Regarding
the allegation that Ms Vilankulo was a minor at the time of her
marriage with the applicant, it was averred that
as Ms Vilankulo was
born on 26 August 1984, she was over the age of 18 years
at the time. Reliance was placed on,
inter
alia,
s 24(1) of the Marriage Act 25 of 1961 (the Marriage
Act) that Ms Vilankulo’s mother had signed as a
witness to
the marriage; and that this constituted parental ‘consent’
as is required by the Marriage Act.
(c)
Lastly,
with regard to the contention that the permanent residence permit in
the applicant’s possession was issued contrary
to the
applicable law, it was contended that the applicant had followed all
the required procedures as expected of him at the time
of his
application for permanent residence and citizenship. Furthermore, the
applicant had all the necessary documentation as proof
that he had
followed all the correct procedures to procure the said permanent
residence permit.
(d)
The
letter concludes by stating that the applicant had shown that there
was no basis to warrant the deprivation of his South African
citizenship in terms of s 8(1)
(a)
and
(b)
of the Citizenship Act.
[9]
On 2 August 2016, the second respondent, acting in terms of
the powers delegated to him pursuant
to s 22 of the
Citizenship Act, sent a letter addressed to the applicant and
his family, stating that after considering
the applicant’s
representations, he had decided to deprive them of their citizenship.
The reason given for the deprivation
of citizenship was that the
permanent residence permit of the applicant had been acquired through
false representation and concealment
of a material fact.
[10]
On 29 August 2016 the applicant launched an application in
the court a quo to review and set aside the
decision of the
deprivation of citizenship. The application was brought in terms of
ss 3 and 6 of the PAJA, in which
the applicant averred
inter alia
:- that the respondents failed, neglected and
refused to consider his representations; that he was not called by
the respondents
after the notice of intention to deprive him and his
minor children of their citizenship was served on him for a possible
hearing;
that there was no indication how the respondents arrived at
the decision of deprivation of citizenship; and, that he was only
afforded
ten (10) days to make representations which was unreasonable
considering the seriousness of the matter.
[11]
In a supplementary affidavit to the founding affidavit filed on
31 January 2017, the applicant averred
further that:
(a)
He
entered into a civil marriage with Ms Nwafor on the
5 February 2000 at a court in Lagos, Nigeria but that they
thereafter started having marital problems that warranted him to file
for divorce;
(b)
In
a bid to resolve the marital problems he and Ms Nwafor attended
the ‘Our Saviour Church’ in Lagos, Nigeria
on
1 March 2003 where their marriage was blessed;
(c)
Despite
the church blessing, the marital problems persisted and the divorce
was finalised on 12 March 2003; and
(d)
After
the divorce he came to South Africa and then got married to
Ms Vilankulo.
[12]
An exchange of papers ensued between the parties in the course of
which the respondents disputed and put into question
the validity and
genuineness of a plethora of the applicant’s documents on which
he relied in his application for permanent
residence and citizenship.
They also referred to various incidents of irregular conduct on the
part of the applicant and other
relevant individuals like
Ms Vilankulo, in procuring the said documentation.
[13]
The respondents’ opposition to the applicant’s
application, gleaned from the papers and documents filed
on record
after extensive investigation by the department’s officials of
the applicant’s status in the Republic, reveals
the following:
(a)
On
1 March 2003, the applicant and Ms Nwafor entered into
a marriage at ‘Our Saviour Church’ in
Lagos,
Nigeria. This is supported by the ‘Certificate of Marriage’
of the same date. This document records,
significantly, that the
applicant and Ms Nwafor are ‘bachelor’ and ‘spinster’
respectively, and, under
the column with the heading ‘When
Married’, the date is recorded ‘1
st
March
2003’. It is significant that nowhere in this document is there
a reference to any so-called blessing of a marriage,
as the applicant
alleges.
(b)
On
25 April 2003 while still married to Ms Nwafor, the
applicant entered into an antenuptial contract with exclusion
of the
accrual system with Ms Vilankulo. However, in the relevant part
of this document, the applicant described himself as
‘unmarried’.
This is patently false because at the time he was still married to
Ms Nwafor.
(c)
The
applicant’s claim that he was a bachelor was repeated in form
B131-E, being a declaration for purpose of a marriage, between
the
applicant and Ms Vilankulo, dated 25 April 2003.
(d)
On
the strength of the applicant’s marriage to a South African
citizen on 25 April 2003, the applicant then
on
21 January 2004, secured an exemption certificate in terms
of the predecessor to the Immigration Act, being the Aliens Act.
It is not disputed that this document was issued approximately
9 months after the Immigration Act had come into operation
and
the Aliens Act, under which it was supposedly issued, had been
repealed. Furthermore, as there was no transitional period this
means
that any exemption certificates issued under the repealed Act became
ineffective immediately after the new legislation came
into effect.
[14]
As there is no valid explanation as to how the applicant managed to
get hold of this permanent residence permit,
the inference that it
was obtained through fraudulent means as the respondents aver, is in
my view, not unreasonable. In an attempt
to prove the legality of his
marriage to Ms Vilankulo on 25 April 2003, the applicant
explained in his supplementary
affidavit that he was married to
Ms Nwafor on 5 February 2000, in Lagos, Nigeria, but
that the marriage to Ms Nwafor
was dissolved when the court in
Nigeria granted a decree of divorce on 12 March 2003.
[15]
However, the so called decree of divorce dated 12 March 2003
relied upon by the applicant, which on its
face has patent errors,
nonetheless expressly records in the 4
th
paragraph thereof
that it is in fact a ‘Decree Nisi’ and states that ‘the
Decree Nisi of Dissolution of Marriage
shall be made absolute at the
expiration of three (3) months from today if no cause is shown to the
contrary.’ In simple
terms this means that either party can
prove that the marriage should not be finally dissolved in that three
- month period. If
no-one does so, the divorce takes effect three
months from 12 March 2003. The earliest possible date of divorce was
accordingly
12 June 2003. Clearly, there was no divorce between the
applicant and Ms Nwafor on 12 March 2003 as alleged by
the
applicant. The inescapable conclusion is, therefore, that when
the applicant married Ms Vilankulo on 25 April 2003, his prior
marriage
to Ms Nwafor in 2000 still subsisted and remained valid.
[16]
The matter eventually served before Constantinides AJ, who on
28 November 2017 referred the matter to
oral evidence. In
so doing, the learned judge specifically referred for oral evidence
the issues identified in the first paragraph
of the department’s
aforementioned letter to the applicant and his family dated 13 April
2016.
[17]
The matter was then enrolled for the hearing of oral evidence on
6 May 2019. However, just before the
trial resumed, the
applicant requested a postponement indicating an intention to abandon
a portion of the order of Constantinides AJ,
and proposed that
the matter should rather proceed by way of an application. The matter
was accordingly postponed
sine die.
[18]
On 9 May 2019, the parties signed a pre-trial minute in
which they agreed that the matter will no longer
proceed to oral
evidence as was indicated in the court order of Constantinides AJ,
and that the matter would be placed on
the opposed motion roll. It
was further recorded that there would be no need to call any
witnesses but that the matter would be
argued based on the documents
and papers before the court.
[19]
The matter was then argued before Potterill J, who on
27 June 2019 dismissed the applicant’s
application
with costs. In the course of her judgment, she held that as the
applicant had not sought and obtained the court’s
requisite
leave, the applicant’s supplementary affidavit that was filed
on 30 June 2017, was
pro non scripto
. As such, she
would not accept or consider the contents thereof. However, the
learned judge dealt with a specific issue raised
therein albeit as a
point of law namely, that the Minister could not have delegated the
power to deprive citizenship to the Director General,
and
accordingly, that the deprivation was unlawful.
[20]
Potterill J held that this point stood to be dismissed as being
bad in law because the delegation in this
case was proper and
accorded with s 22 of the Citizenship Act, which provides:
‘
Delegation
of powers
The
Minister may, subject to such conditions as he or she may deem
necessary, delegate any power conferred on him or her by this
Act . .
. to an officer in the service of the Department, but shall not be
divested of any power so delegated, and may set aside
or amend any
decision of the delegate made in the exercise of such a power.’
[21]
Having found that there were disputes of fact in the matter and as
final relief was sought, the learned judge applied
the rule in
Plascon-Evans
[1]
and
held that the Minister’s version pertaining to the unlawful
exemption certificate procured by the applicant would prevail.
She
accepted the respondents’ version that some of the documents
that the applicant had used to obtain his citizenship were
fraudulent
and that the applicant was already married to Ms Nwafor when he
purported to marry Ms Vilankulo on 25 April 2003.
[22]
The applicant’s subsequent application for leave to appeal,
brought before Potterill J, met with the
same fate on
12 November 2019, when it was dismissed with costs. In
argument, reliance was sought to be placed on three
points namely,
the principles of legality in relation to the issue of the delegation
of power by the Minister to the Director General,
the issue of
the deprivation of citizenship of the minor children; and the
applicant’s abandonment of Constantinides AJ’s
judgment.
[23]
Potterill J found that the point raised concerning who between
the Minister and the Director General
had taken the decision of
deprivation and that no documentary delegation was before court, was
a completely new point not raised
as a ground of review or canvassed
before the court. She also held that the point that the minor
children could not have been deprived
of their citizenship fell to be
dismissed on the basis that it was only raised for the first time on
appeal. In any event, no ground
had been raised that s 28(2) of
the Constitution had not been complied with and that the children are
not without care or
that they cannot follow the applicant’s
citizenship.
[24]
Lastly, Potterill J rejected the contention made on the applicant’s
behalf that the abandonment of Constantinides AJ’s
judgment was against public policy as being laboured. In her view, a
party was within his rights to abandon a judgment that ruled
that a
matter was referred to oral evidence. She held that
in casu
,
the applicant chose, as the
dominus litis
party, not to
utilise
viva voce
evidence, but to rather use the application
procedure. In refusing to grant leave to appeal, Potterill J
said she was satisfied
that no other court would come to a different
conclusion.
[25]
Section 17(1) of the Act sets out the statutory matrix as well
as the test governing applications for leave
to appeal. The section
states in relevant parts, and in peremptory language, that leave to
appeal may only be given where the judge
or judges concerned are of
the opinion that:
‘
.
. .
(a)
(i)
the appeal would have a reasonable prospect of success;
(ii) there is some
other compelling reason why the appeal should be heard including,
conflicting
judgments
on the matter under consideration;
.
. .
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.'
[26]
This application is premised on the applicant’s contention that
the appeal has reasonable prospects of success.
The applicant also
contends that even where it is found there are limited prospects of
success, leave to appeal may be granted
if there are compelling
reasons to do so such as the public importance of the case or the
novelty of the issues to be determined.
Accordingly, it was submitted
on the applicant’s behalf that this case is a matter of public
importance with far reaching
consequences. Furthermore, the outcome
of this matter will not only affect the status of the applicant and
his family, but will
also set a precedent on how issues of
deprivation of citizenship are handled by the department’s
officials in the future.
[27]
The applicant’s bases or grounds for the application, which are
delineated as issues for determination in
the applicant’s heads
of argument, are as follows:
(a)
Whether the applicant should be granted leave to adduce the further
evidence contained in the supplementary affidavit that was
filed on
30 June 2017;
(b)
Whether the applicant should be granted leave to introduce new points
of law pertaining to the following issues namely:
(i)
the absence of delegation of authority granted to the decision -
maker;
(ii)
the collective deprivation of citizenship of the minor children and
their mother; and
(iii)
the abandonment issue.
[28]
In argument before us, the intended application to adduce further
evidence in the supplementary affidavit was not
pursued. This
decision was, in my view, well taken considering that the court a quo
quite rightly disregarded the supplementary
affidavit on the basis
that no leave to file same was sought and obtained from the court a
quo, a fact rightly conceded by the
applicant in the papers. Nothing
further needs to be said about this issue. Regarding the remaining
issues, the applicant’s
counsel submitted that these would be
pursued as points of law.
[29]
The law and principles applicable to the raising of points of law on
appeal are trite. The position was aptly described
by Wallis JA
in
Minister
of Justice and Constitutional Development and Others v Southern
African Litigation Centre and Other
s,
[2]
as
follows:
‘
That
is not to say that merely because the High Court determines an issue
of public importance it must grant leave to appeal. The
merits of the
appeal remain vitally important and will often be decisive.
Furthermore, where the purpose of the appeal is to raise
fresh
arguments that have not been canvassed before the High Court,
consideration must be given to whether the interests of
justice
favour the grant of the leave to appeal. It has frequently been said
by the Constitutional Court that it is undesirable
for it as the
highest court of appeal in South Africa to be asked to decide legal
issues as a court of both first and last instance.
That is equally
true before this Court. But there is another consideration. It is
that if a point of law emerges from the undisputed
facts before the
court it is undesirable that the case be determined without
considering that point of law. The reason is that
it may lead to the
case being decided on the basis of legal error on the part of one of
the parties in failing to identify and
raise the point at an
appropriate stage. But the court must be satisfied that the point
truly emerges on the papers, that the facts
relevant to the legal
point have been fully canvassed and that no prejudice will be
occasioned to the other parties by permitting
the point to be raised
and argued.’
(Footnotes
omitted.)
[30]
Although the applicant has in my view failed to satisfy the
requirements laid down in the
Southern African Litigation
Centre
case, as I will demonstrate later in this judgment, I have
nonetheless decided to deal with the merits of the points of law
raised.
I start with the issue pertaining to the alleged absence of
delegated authority.
[31]
As I have explained earlier, although the court a quo disregarded,
quite rightly, the supplementary affidavit,
as it was filed without
leave of the Court, the court still considered the point raised
therein that the Minister could not have
delegated the power to
deprive a citizen to the Director General and that the
deprivation is thus
ultra vires
the law. The court a quo
rightly rejected this contention as bad in law based on the
provisions of s 22 of the Citizenship Act.
[32]
Before us this issue took on a new form namely, that the respondents
did not follow due legal process in revoking
the applicant’s
citizenship. This was because, so the argument went, the notice of
deprivation was signed by the second respondent
who at the time
was not in possession of the delegation of authority in terms of s 8
of the Public Service Act 38 of 1994
requiring,
inter alia
,
that a delegation by the Minister to the Director General had to
be in writing.
[33]
In my view, this point cannot succeed and must suffer the same fate
as the one raised earlier before Potterill J.
It is a completely
new issue not hitherto raised before either in the papers or before
the court a quo.
[3]
Furthermore,
the delegation by the Minister accords full square with the clear
provision of s 22 in the Citizenship Act.
As the first
respondent may under s 22 of the Citizenship Act delegate any
power, conferred to him or her under that Act,
this includes in my
view, the power to deprive citizenship in terms of s 8 of this
Act.
[34]
The applicant’s attempt to place reliance on the decision in
Apleni
v President of the Republic of South Africa and Another,
[4]
is
misconceived. The facts in this case are clearly distinguishable as
the aspect of delegation was squarely raised in the papers
unlike
in
casu,
where the issue only rears its head on appeal.
[35]
The other ground that the applicant is raising relates to the alleged
collective deprivation of citizenship of
the applicant’s minor
children and his wife. It is averred that this is a matter of public
interest and that issues of the
rights of women and children should
be severed from their dependence on the citizenship of their husband
and father.
[36]
Reliance was sought to be placed on s 10 of the Citizenship Act
which provides that ‘[w]henever
the responsible parent of a
minor has in terms of the provisions of section 6, 8 or 9 ceased to
be a South African citizen,
the Minister may, with due regard to
the provisions of the Guardianship Act, (Act No.192 of 1993)
[now the Children’s
Act 38 of 2005], order that such minor, if
he or she was born outside the Republic and is under the age of
18 years, shall
cease to be a South African citizen’.
[37]
The complaint under this heading is that the respondents failed to
put up any facts to show that the Minister considered
certain factors
in making the requisite determination, flowing from the need to
protect the interests of children as required in
s 7 of the
Children’s Act. It is then averred that the children’s
case ought to have been dealt with separately
and not as though the
children were mere appendages to the applicant. Similarly, the
applicant’s Nigerian wife, so it was
submitted, is an
independent bearer of rights meaning that the department was obliged
to conduct a separate investigation when
revoking her citizenship.
[38]
This point regarding the collective deprivation of citizenship cannot
succeed. To the extent that the applicant
is appealing on behalf of
his wife and children, it is my view that they have never been
parties in the litigation. Further, this
issue is raised for the
first time during this application for leave to appeal. It was never
raised in the founding papers of the
review application. In any
event, it is clear from the papers that the applicant was given an
opportunity to make representations
in terms of s 8(4) of the
Immigration Act, which he duly did. During argument, applicant’s
counsel conceded that the
applicant’s wife could well have
brought review proceedings in her own name to challenge her own
deprivation of citizenship.
No explanation has been proffered why
this was never done.
[39]
It is trite law that litigants who seek to review administrative
action must identify clearly both the facts upon
which they base
their cause of action and their legal basis of their cause of
action.
[5]
This
Court has previously stated as follows in
Tao
Ying Metal Industry (Pty) Ltd v Pooe N.O and Others
[6]
‘
.
. . [o]ur courts do not allow applicants in review proceedings to
raise new grounds of review in replying affidavits or from the
bar
during argument (
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A) at 635H-363B)’. In the circumstances, the
point raised under this heading must also fail.
[40]
The final point of law raised in support of the application relates
to the challenge of the validity of the abandonment
of
Constantinides AJ’s judgment on the basis of
non-compliance with Rule 41(2) of the Uniform Rules of Court.
This rule provides that any party in whose favour any decision or
judgment has been given, may abandon such decision or judgment
either
in whole or in part by delivering notice thereof, and such judgment
or decision abandoned in part shall have effect subject
to such
abandonment. It is averred that as the prescribed notice was never
issued to the applicant, it cannot be said that the
judgment was
abandoned. Furthermore, the pre-trial minute dated 9 May 2019,
wherein the judgment was abandoned, is of
no force or effect. It was
also contended on the applicant’s behalf, that this sub-rule
has no bearing in respect of judgments
or orders which affect the
status of persons.
[41]
It is trite law that an order or judgment by the court has to be
obeyed and complied with until set aside by a
court of competent
jurisdiction. This principle is applicable to orders and judgments of
courts which are final in effect and are
appealable.
[7]
Such
a judgment or order will only be appealable if it ‘is a
decision which as a general principle, has three attributes:
first,
the decision must be final in effect and not susceptible of
alteration by the court of first instance; second, it must be
definitive of the rights of the parties; and, third, it must have the
effect of disposing of at least a substantial portion of
the relief
claimed in the main proceedings’.
[8]
[42]
Clearly, these principles do not apply to a judgment such as that of
Constantinides AJ in which a matter is
referred to evidence,
which is not appealable. If an order has been made referring an
application for the hearing of oral evidence,
it is open to that
court when a matter comes before it for the hearing of such oral
evidence, to hold it is unnecessary to hear
oral evidence and decide
the matter on papers.
[9]
This
is especially so when the parties agree that to be the case.
[43]
In the light of what I have stated above, I find that it was
competent and proper for Potterill J to give
effect to the
applicant’s election not to lead oral evidence in the matter,
as confirmed in the parties’ pre-trial
minute of 9 May 2019,
and to depart from the earlier order of Constantinides AJ.
Clearly, the latter order is purely
procedural and not final, did not
grant definite and distinct relief and did not dispose of any portion
of the relief sought in
the review application.
[44]
It follows that the submission by the applicant that in matters
involving status, abandonment is generally not
allowed is misplaced
and cannot succeed. The attempt by the applicant to draw in aid the
decision in
Ex
parte Taljaard
[10]
does
not assist as the applicant in that case had sought to abandon a
final sequestration order during an appeal.
[45]
In the final analysis, Rule 41(2) is totally irrelevant and not
applicable in this matter. The point raised
is clearly based on a
wrong legal premise and must accordingly fail.
[46]
As can clearly be seen, all three points of law fail lamentably to
meet the requirements that were well expounded
by this court in
South
African Litigation Centre
. Firstly, the points of law do not
emerge from the undisputed facts before the Court. The very fact that
there was a referral to
evidence to determine issues pertaining to
alleged fraudulent and suspicious documents is undoubtedly
significant and points to
the fact that material issues were in
dispute. Second, the points of law do not emerge from the papers.
Third, at least one of
the points was based on a wrong legal premise.
Lastly, as these were raised for the first time on appeal, there can
be no denying
that the respondents were severely prejudiced by the
raising of, and wrongful attempt to call in aid, the points of law
raised
on behalf of the applicant.
[47]
The complaint by the applicant that the deprivation of citizenship
was arbitrary and unlawful and was done without
being afforded an
opportunity to be heard or that he was not afforded sufficient and
reasonable time to make representations, must
fail. An analysis of
the department’s letter dated 13 April 2016,
addressed to the applicant and his family shows
that it complies with
s 3(2) of PAJA in that the applicant was given:
‘
.
. .
(i)
adequate notice of the nature and purpose of the proposed
administrative action;
(ii)
a reasonable opportunity to make representations;
(iii)
a clear statement of the administrative action;
(iv)
adequate notice of any right of review or internal appeal, where
applicable; and
(v)
adequate notice of the right to request reasons in terms of section
5.’
[48]
It is so, as alluded earlier, that on 3 May 2016 the applicant
forwarded, through his legal representatives, representations
in
response to the letter of notification of the intention to deprive
the appellant and his family of their South African citizenship.
[49]
In light of what I have stated above, I find that the applicant falls
short of the test set out in s 17(1)
(a)
of the Act. The
applicant has failed to show there are reasonable prospects of
success on appeal. The application must therefore
fail.
[50]
In the circumstances, the following order is made:
The
application is dismissed with costs, such costs to include the costs
of two counsel.
B.H
MBHA
JUDGE
OF APPEAL
APPEARANCES:
For appellant:
D C Mpofu SC (with him K Pillay)
Instructed by:
Tshuketana Loselo Inc., Pretoria
Modisenyane
Attorneys, Bloemfontein
For respondent:
W R Mokhare SC (with him M H Mhambi)
Instructed
by: The State Attorney,
Pretoria
The
State Attorney, Bloemfontein
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634–635;
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
[2]
Minister of Justice and
Constitutional Development and Others v Southern African Litigation
Centre and Other
s
[2016]
ZASCA 17
;
2016 (3) SA 317
(SCA) para 24.
[3]
Fischer and Another v
Ramahlele and Others
[2014]
ZASCA 88
;
2014 (4) SA 614
(SCA) para 13.
[4]
Apleni v President of the
Republic of South Africa and Another
[2018]
1 All SA 728
(GP)
para
22.
[5]
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 37.
[6]
Tao Ying Metal Industry (Pty)
Ltd v Pooe NO and Others
[2007]
ZASCA 54
;
[2007] 3
All SA 329
(SCA) para 98.
[7]
Clipsal Australia (Pty) Ltd
and Others v GAP Distributors (Pty) Ltd and Others
[2009]
ZASCA 49
;
2010 (2) SA 289
(SCA) at paras 8, 21 and 22.
[8]
Zweni v Minister of Law and
Order
1993 (1) SA 523
(A) at 532I-533B
.
[9]
See the remarks of Milne JA
in
Wallach v Lew
Geffen Estates CC
[1993] ZASCA 39
;
1993 (3) SA 258
(A) at 263H.
[10]
Ex parte
Taljaard
1975 (3) SA 106
(O) at 108A-109A.