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[2021] ZAGPPHC 318
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M[....] and Another v Minister of Home Affairs and Another (26235/20) [2021] ZAGPPHC 318 (21 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No: 26235/20
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
DATE:
21 May 2021
In
the matter between:
M[..]
SZ
First
Applicant
M[…]
BA
Second
Applicant
and
THE
MINISTER OF HOME AFFAIRS
First
Respondent
DIRECTOR
GENERAL:
DEPARTMENT
OF HOME AFFAIRS
Second Respondent
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
WILSON
AJ
:
1
The
first respondent (“the Minister”) and the second
respondent (“the Director-General”) seek leave to appeal
to a Full Court of this Division against my judgment of 3 December
2020. In that judgment I reviewed and set aside the
Director-General’s
decision to refuse to issue an unabridged
death certificate to the applicant (“Ms. M[…]”).
That refusal was
based on the proposition that Ms. M[…]’s
deceased husband, Mr. M[…], was not a South African citizen at
the
time of his death.
2
In
my judgment, I concluded that there no factual basis on which to
conclude that Mr. M[…] was not a South African citizen
at the
time of his death. I also found that there was no legal basis on
which the Director-General could refuse to issue an unabridged
death
certificate to Ms. M[…], even if Mr. M[…] did not die a
South African citizen.
3
Both these conclusions are challenged in the application for
leave to appeal. It is further argued that, because the review
application
was brought out of time without a “substantive”
application to extend the 180-day period specified in section 7 (1)
of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”),
I had no power, as a matter of law, to entertain
it.
4
Having
given the matter some thought, I am unable to conclude that there is
any reasonable prospect that a court of appeal would
reverse or
materially alter the order I gave.
5
These
are my reasons.
Whether
Mr. M[…] was a citizen at the time of his death
6
At
the outset of his oral argument, Mr. Luthuli, who appeared for the
respondents, notified me that the respondents no longer pursue
the
central argument they made before me in the main application. That
argument was that Mr. M[…] had obtained his South
African
citizenship by fraud.
7
In my judgment on the merits, I held that the respondent had
failed to adduce any evidence from which that conclusion could be
drawn.
There was no evidence of what fraud had
been committed, how the respondents had uncovered it, or of what
conclusions they had drawn
from their investigations.
I also
held that, in any event, there was no allegation that the Minister
had exercised his powers to withdraw Mr. M[…]’s
citizenship in terms of section 8 of the South African Citizenship
Act 88 of 1995 (“the Act”). Even if an act of fraud
had
been demonstrated (it had not), the exercise of that power was an
essential pre-requisite to the lawful withdrawal of Mr. M[…]’s
citizenship.
8
The
respondents now accept this, and Mr. Luthuli conceded that it cannot
reasonably be argued in any appeal that Mr. M[…]’s
citizenship was lost because it was fraudulently obtained.
9
Mr.
Luthuli instead concentrated his submissions on the alternative
argument raised on the respondents’ behalf in the main
application. That argument was that Mr. M[…] lost his
citizenship by operation of law because he voluntarily acquired
Zimbabwean
citizenship 2013. This loss of citizenship was said to be
the effect of section 6 of the Act, which provides that anyone who
“whilst
not being a minor, by some voluntary and formal act
other than marriage, acquires the citizenship or nationality of a
country other
than the Republic” thereby forfeits their South
African citizenship.
10
It
is a matter for comment that the factual basis for this claim is
fundamentally inconsistent with the case the respondents initially
made out. Mr. M[…] is said to have obtained a Zimbabwean ID
document in 2013. If that had the effect of extinguishing in
South
African citizenship, then it follows that the fraud investigation
that took place in 2010, and on which the respondents initially
relied, could not have had that effect.
11
What
the respondents seek to do on appeal is discard the factual
foundation on which their case was originally constructed. Instead
of
the case they pleaded, they now rely on two lines in the applicants’
papers to the effect that Mr. M[…], at some
point “went
to Zimbabwe and obtained a Zimbabwean ID as per his father’s
cultural and traditional demands” (see
paragraph 12.1 of the
founding affidavit) and that Mr. M[…] “applied for his
Zimbabwean citizenship in 2013”
(see paragraph 8.1 of the
replying affidavit).
12
It
does not seem to me that either of these allegations categorically
confirms that Mr. M[…] voluntarily acquired Zimbabwean
citizenship, but that is not an issue I decided in the main
application.
13
Nor did I need to decide it. The parties accepted that the
only way that Mr. M[…] could have acquired Zimbabwean
citizenship
was by virtue of the provisions of section 37 (a) of the
Zimbabwean Constitution, 2013. Section 37 (a) conferred Zimbabwean
citizenship
on Mr. M[…] by operation of law because he had a
Zimbabwean father. I held in my main judgment that it follows from
this
that Mr. M[…]’s acquisition of Zimbabwean
citizenship was not voluntary, and that section 6 of the Act does not
apply.
14
To meet this difficulty, Mr. Luthuli drew a distinction
between a statute that confers citizenship, and the decision of an
organ
of state to recognise that the statute applies to a particular
person. The submission was that a person upon whom citizenship is
conferred by statute only acquires that citizenship once the
appropriate organ of state recognises them as a citizen. It follows
from this, Mr. Luthuli argued, that Mr. M[…] acquired
Zimbabwean citizenship voluntarily when he applied for his Zimbabwean
identity document, not when the Zimbabwean Constitution conferred it
on him by operation of law.
15
I do not think there is any prospect that a court of appeal
will accept this submission. There is a clear conceptual distinction
between the fact of citizenship, and the administrative processes
necessary to obtain documents in certification of that status.
Were
it otherwise, as Mr. Jozana, who appeared for Ms. M[…],
pointed out, a baby born in South Africa to South African parents
would not actually become a citizen until the state recognised them
as such. This cannot be correct.
16
I have spent some time summarising these arguments because
they were not advanced in the main application. That is, in itself,
no
bar to them being pursued on appeal. However, there is, in my
assessment, no prospect that an appeal court will uphold them, and
find that Mr. M[…] lost his South African citizenship before
he died.
The
power of the Director-General to issue an unabridged death
certificate
17
This conclusion renders it strictly unnecessary to consider
whether there is any prospect that a court of appeal would differ
with
my conclusion that the Director-General is empowered to issue a
death certificate to a non-citizen.
18
Nonetheless, it is appropriate for me to note that the
respondents’ case on this point has changed as well. Mr.
Luthuli placed
on record that the respondents now accept that the
Births and Deaths Registration Act 51 of 1992
, read together with the
Regulations on Registration of Births and Deaths, 2014, clearly
permit the Director General to issue an
unabridged death certificate
to a non-citizen, for the reasons I gave in my judgment on the main
application.
19
The
problem, Mr. Luthuli submitted, was that the only difference between
an abridged and unabridged death certificate is that an
unabridged
death certificate contains the deceased’s identity number. The
Director-General cannot enter an identity number
onto an unabridged
death certificate if the deceased is no longer a citizen.
20
It does not appear to me that the inclusion of an identity
number is the only difference between an abridged and unabridged
death
certificate. However, I do not see that there is any
prohibition on the Director-General entering Mr. M[…]’s
identity
number on an unabridged death certificate, even if Mr. M[…]
had lost his citizenship at the time of his death. Mr. M[…]
clearly had an identity number, and Mr. Luthuli was unable to provide
a reason why that identity number could not placed on an
unbridged
certificate of Mr. M[…]’s death.
21
Mr. Luthuli’s reliance on
section 7
(1) of the
Identification Act 68 of 1997
took the matter no further.
Section 7
(1) states that the Director-General “shall assign an identity
number to every person whose particulars are included in the
national
population register”. Mr. Luthuli accepted that Mr. M[…]’s
particulars had been included in the national
population register and
an identity number had been assigned to him, but nonetheless
submitted that
section 7
(1) precludes that number from being entered
on an unabridged certificate of Mr. M[…]’s death.
22
I am unable to see how
section 7
(1) prevents this. In my
assessment, there is no prospect that a court of appeal would find
such a prohibition either.
23
This
is quite apart from the fact that the issue of what information could
go onto an unabridged death certificate was not the issue
before me
in the main application. The issue before me was whether an
unabridged death certificate could be issued at all. The
respondents
have now conceded that it can. That brings an end to any prospects of
success they might have on this leg of their
proposed appeal.
The
court’s power to entertain the review application
24
It
was finally argued that, because there was no “substantive”
application to extend the 180-day time period prescribed
by
section 7
(1) of PAJA, I lacked the jurisdiction to entertain Ms. M[…]’s
case at all.
25
Ms. M[…]’s review was brought out of time. But
section 9
(2) of PAJA allows a court to extend the time within which
a review application may be brought, if an application for that
relief
is made to it. In this case, as I recorded in my judgment on
the merits, such an application was brought from the bar.
26
Mr.
Luthuli submitted that there is a reasonable prospect that an appeal
court will find that this was not good enough. That submission
rested
on the decision of the Supreme Court of Appeal in
Asla
Construction v Buffalo City Metropolitan Municipality
2017 (6) SA
360
(SCA). At paragraph 8 of that decision, Swain JA held that
section 9
of PAJA contemplates a “substantive”
application to extend the time-period prescribed in
section 7.
27
Mr.
Luthuli submitted that “substantive” must almost always
mean “written”, or at least that “substantive”
meant “written” in this case. Because the application
brought from the bar was not in writing, and did not clearly
explain
the reasons for the delay, Mr. Luthuli submitted that it was not an
“application” for the purposes of
section 9
(2) of PAJA
at all. It follows that I had no power to entertain it.
28
Again,
none of this was argued before me in the main application, and no
objection was raised, at the time, to me hearing an application
for
the extension of time from the bar. No prejudice to this procedure
was alleged, and it is hard to see what prejudice there
could have
been.
29
Nonetheless,
assuming that this is not in itself fatal to an appeal based on the
decision in
Asla
, I do not think that there is a reasonable
prospect that, on the facts of this case, a court of appeal will find
that a written
application was required. A “substantive”
application is an application that deals with the real issues between
the
parties on the facts pleaded. These facts need not be pleaded in
a dedicated written application. They need only be apparent from
the
record. If there is any prejudice at all to an application from the
bar, and a written application with new facts is necessary,
a court
is free to require one, and either party may apply for leave to place
one before the court.
30
But
that is quite a different matter from placing a court under an
absolute statutory obligation only to extend the time allowed
under
PAJA if a full written application is delivered and motivated in
every case. I find nothing in
Asla
, and nothing in PAJA
itself, that would yield that obligation.
31
In this case, the interests of justice cried out for the
review application to be entertained. The prospects of success were
so
strong, and the impact on minor children of refusing to entertain
it so profound, that I determined that an extension of time was
appropriate on the facts as they stood. The respondents did not seek
at the time to introduce new facts that would have changed
that
impression. The fact that much of the respondents’ case has now
been abandoned reinforces that view.
32
The
application for leave to appeal is dismissed with costs.
SDJ WILSON
Acting Judge of the High
Court
This
judgment was handed down electronically by circulation to the parties
or their legal representatives by email and by uploading
it to the
electronic file of this matter on Caselines. The date for hand-down
is deemed to be 21 May 2021.
HEARD
ON:
19 May 2021
DECIDED
ON: 21 May 2021
For
the Applicant: M
Jozana
Instructed
by Banda and Associates Inc
For
the Respondents:
S
Luthuli
Instructed by the State
Attorney