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[2019] ZAGPPHC 88
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Jose and Another v Minister of Home Affairs and Others (38981/17) [2019] ZAGPPHC 88; 2019 (4) SA 597 (GP) (15 March 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES : YES
(3)
REVISED
CASE NO: 38981/17
15/3/2019
In
the matter between:
JOSEPH
EMMANUEL
JOSE
First Applicant
JONATHAN
DIABAKA
"JUNIOR"
Second Applicant
and
THE
MINISTER OF HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL:
DEPARTMENT
OF HOME
AFFAIRS
Second Respondent
DISTRICT
MANAGER OF OPERATIONS: JOHANNESBURG
DEPARTMENT
OF HOME AFFAIRS
Third Respondent
OFFICE
MANAGER: JOHANNESBURG REGIONAL OFFICE
DEPARTMENT
OF HOME AFFAIRS
Fourth Respondent
JUDGMENT
YACOOB
AJ:
Introduction
1
This
is an application for an order requiring the respondents to grant the
applicants citizenship in terms of section 4(3) of the
South African
Citizenship Act 88 of 1995 ("the Citizenship Act").
2
The
applicants are brothers, who were born in South Africa. Their parents
are Angolan refugees who sought asylum in South Africa,
are not South
African citizens and are not, and did not enter South Africa for,
permanent residence. Both applicants have lived
in the Republic from
the time they were born until they attained majority. They have no
links to Angola and consider South Africa
their home. This much is
common cause.
3
The
Citizenship Act provides in section
4(3)
that
A child born in the Republic of parents who
are not South African citizens or who have not been admitted into the
Republic for permanent
residence, qualifies to apply for South
African citizenship upon becoming a major if-
(a)
he or she has lived in the
Republic from the date of his or her birth to the date of becoming a
major; and
(b)
his or her birth has been
registered in accordance with the provisions of the
Births and Deaths
Registration Act, 1992
.
4
The applicants applied for South African citizenship in terms of the
section,
by affidavit, no forms having been promulgated for the
purpose, and the respondent's officials not having responded to
queries
as to the correct manner in which to apply. The first
applicant submitted his application on 25 August 2016 and the second
applicant
on 24 October 2016.
5
No
substantive response was given by the respondents to the applicants'
submissions and queries. On 17 March 2017 the respondents'
attorneys
placed the respondents on terms, and the application was instituted
on 7 June 2017.
6
On
19 January 2017, the applicants also made applications for permanent
residence status in terms of section 31(2)(b) of the Citizenship
Act,
as a result of an order of the Western Cape High Court that persons
in the applicants' position were entitled to apply for
permanent
residence. These applications were "conditional" on the
outcome of the citizenship applications.
7
The
respondents' case is that:
7.1.
no
proper applications for citizenship were lodged, because the
affidavits were not lodged on the correct forms (the DH-63 forms
which are for section 5(1) applications, there being no forms for
section 4(3) applications);
7.2.
because
the applicants had previously delivered a request for assistance in
making an application for citizenship, they had made
two applications
each and the respondents could not know which to process (despite the
respondents' contention that neither was
an application for
citizenship, and the applicants' case being that only the affidavits
were applications);
7.3.
the
time period within which the respondents were expected to make a
decision on the applications before this application was instituted
was "grossly unreasonable" (although there is no allegation
as to what a reasonable period would be);
7.4.
the
applicants failed to make use of their internal remedy in terms of
section 25 of the Citizenship Act;
[1]
7.5.
section
4(3) of the Citizenship Act applies only to people born after the
amendment to the Act on which .the applicants allow came
into force
on 1 January 2013;
7.6.
the
registration of the applicants' births are not registrations as
intended in section 4(3) of the Citizenship Act because they
are
handwritten and have a stamp on them which says "alien" -
and that only children born of South African citizens or
permanent
residents can ever be registered in accordance with the Births and
Deaths Registration Act, 51 of 1992 ("the Registration
Act")
(this despite the fact that the applicants' allegation that their
births were registered in accordance with the Registration
Act is
admitted);
7.7.
the
applicants can in any event apply to be permanent residents or
refugees rather than citizens, and
7.8.
the
applicants would not in any event have a right to be granted
citizenship, but only to apply for citizenship, and no case is
made
out for this court substituting its decision for that of the Minister
on the applicants' applications, if any.
8
At
the hearing of the matter the respondent requested the postponement
of the matter
sine die
on
the basis that an appeal against the judgment of the Western Cape
High Court in
Ali and Others v
Minister of Home Affairs and Another
[2]
was due to be heard before the
Supreme Court of Appeal and that the issues were similar. The
respondents contended that their success
in the appeal would at least
deal with some of the issues in this case, but not all of them. The
respondents contended also that
if they were unsuccessful in the
appeal that would still not be determinative of the issues in this
case.
9
In
those circumstances, it was clearly in the interests of justice to
hear the matter. Unfortunately, due to intervening circumstances
it
was not possible to finalise this judgment as promptly as intended
and the SCA judgment in the
Ali
judgment has in the intervening
period been handed down. That judgment binds this court, and
determines how a number of the issues
in this case must be dealt
with.
10
The
applicants drew the SCA judgment in
Ali
to my attention with the
respondents' consent.
11
The
SCA dismissed the
Ali
appeal
[3]
and ordered the Minister of Home Affairs to make regulations for
applications in terms of section 4(3) of the Citizenship Act within
one year of its order, and to accept applications for citizenship in
terms of section 4(3) on affidavit pending the promulgation
of those
regulations. It also confirmed the orders of the High Court that the
Minister accept the applications of the applicants
for citizenship in
that matter on affidavit and make a decision within 10 days, and
declaring that section 4(3) applied to all
persons who met the
requirements, regardless of whether they were born before or after 1
January 2013.
12
The
court a
quo
in
Ali
had
found that section 4(3) applies to all persons who meet the
requirements of the section, even if they were born before 1 January
2013. In the SCA, the Minister (the first respondent in this matter)
conceded that there was no merit in the argument based on
retrospectivity. Nevertheless, the SCA dealt with that argument and
confirmed that it did not hold water.
13
It
was also conceded that the applicants for citizenship in terms of
section 4(3) who were the applicants in the high court in
Ali
all complied with the requirements
of section 4(3) and qualify to be granted citizenship in terms of the
Citizenship Act. Those
applicants appear, from the face of the two
judgments, to be in the same situation as far as those requirements
go as the applicants
in this case.
14
The
SCA found that there was no merit in the argument that the applicants
should have followed the remedy in terms of section 25
of the
Citizenship Act, as there was no decision to be reviewed or set
aside, and also because of the position taken by the Minister,
that
there could be no decision in the absence of application forms.
15
The
SCA also dealt with and dismissed the argument that the applicants
for citizenship are not prejudiced because they can also
apply for
permanent residence or refugee status.
16
The
Ali
case
therefore disposes of the retrospectivity argument; the question of
the form of the applications; the permanent residence and
refugee
status argument,
[4]
and the internal review argument.
17
What
remains are the following:
17.1.
whether
there was any vagueness or ambiguity about what applications the
respondents were to determine;
17.2.
whether
the time period allowed to the respondents for making a decision was
"grossly unreasonable";
17.3.
whether
the applicants comply with section 4(3)(b) of the Citizenship Act
(the registration of their births in accordance with the
Registration
Act), and
17.4.
whether
a case has been made out for this court to order the respondents to
grant the applicants' applications for citizenship,
rather than to
consider them.
Did
the applicants submit multiple applications for citizenship to the
respondents?
18
The
applicants do not contend that they have made multiple applications
for citizenship. They are very clear that they first delivered
"enquiries" as to how to apply, which included requests for
assistance, and only when that assistance was not forthcoming
did
they each deliver an application on affidavit. They only made one
application each and that is the one the respondents were
requested
to consider.
19
It is clear also that when the
applicants enquired as to the status of their applications for
citizenship they were not told that
there was an issue because there
were multiple applications. In fact, the only response received
regarding the first applicant
was an enquiry in November 2016 as to
the status of the applicant and his parents, and regarding the second
applicant an email
stating that his birth had not been registered in
terms of the correct procedure, but giving no information regarding
what the
shortcoming was or what the correct procedure was, despite
an enquiry being made by the applicants' attorneys.
20
The
respondents in their answering affidavit state in one breath that the
enquiries were not applications but merely enquiries,
and in the next
that the enquiries were applications and that the applications were
"second applications". They cannot
have it both ways. On
no-one's version are the enquiries intended to be applications for
citizenship and it appears the respondent
is clutching at straws in
order to give some semblance of substance to its defence. The fact
that these points are only raised
in the answering affidavit for the
first time, and never previously communicated to the applicants gives
credence to this impression.
21 There is
one application for citizenship from each applicant before the
respondent, and its
contention that there are two is found to be
without merit.
Was
the time period within which the applicants requested a response
before approaching court "grossly unreasonable"?
22 The
first applicant's affidavit application was submitted on 25 August
2016. His attorney
requested a response within 30 days, by 26
September 2016. She followed up on 10 October 2016. The only response
received was the
one referred to above, enquiring as to the status of
the applicant and his parents, on 15 November 2016. This email was
answered
on 16 November 2016 and no response was received. A further
follow up was sent on 17 March 2017, one week short of 6 months after
the application was submitted, putting the respondents on terms to
respond by 3 April 2017, failing which the Court would be approached.
This application was only instituted on 8 June 2017, almost ten
months after the application for citizenship was submitted.
23
The
second applicant's affidavit application was submitted on 24 October
2016. A follow up was sent on 2 November 2016 and the only
response
was the email referred to earlier regarding the registration of the
second applicant's birth. A query was sent enquiring
as to what
further procedure needed to be followed after the birth certificate
had been issued and no response was forthcoming.
As with the first
applicant, the respondent was then put on terms on 17 March, almost 4
months after the application was submitted,
to respond by 3 April
2017, and the application was instituted almost 6 months after the
second applicant's application was submitted.
24
The
applicants rely on the Promotion of Administrative Justice Act, 3 of
2000 ("PAJA") for relief based on the respondents'
failure
to make a decision. PAJA requires there to have been an unreasonable
delay in the taking of the decision.
25
The
respondents' point is that the applicants did not allow sufficient
time for the decision to be made, and that the time allowed
was
grossly unreasonable in how short it was. However, the respondents,
with their specialist knowledge of their processes and
workload, do
not venture to suggest to the court or the applicants what a
reasonable time might be.
26
I
pause to comment that this is consistent with the respondents'
attitude throughout. Rather than say what procedure is to be
followed,
they simply say that one has followed the wrong procedure.
Rather than respond and say we are not able to make a decision in the
time you ask, but we will do so within x number of weeks, they simply
do not provide any response. Nor do they respond to a request
asking
what procedure to follow for making the application, allowing the
applicants to submit applications in a manner the applicants
considered most appropriate, not responding to them, and then only in
court papers, suggesting that there are problems in the applications.
27
The
respondents' manner of dealing with these applications is
unfortunate. It is also inconsistent with a number of the governing
principles of public administration set out in section 195 of the
Constitution.
[5]
28
Even
if the applicants made enquiries too soon, by the time this
application was instituted, almost 8 months had passed in respect
of
the first applicant's application and almost 6 months in respect of
the second applicant. Taking into account that PAJA requires
an
approach to be made to court within 180 days of a decision having
been taken, it is not unreasonable to at least expect some
response
in less than that time.
29
It
was open to the respondents to have made a decision at any time after
the applicants' deadlines, and even after the application
was made to
court. However, they chose to defend the matter.
30
It
is my view that, by the time the applicants approached court, there
was an unreasonable delay in the making of the decision.
Certainly,
by the time the matter was heard, and the decision was still not
made, the delay was inordinate - it was over 2 years
for the first
applicant, and slightly less for the second.
31
The
respondents could have dealt with the applications even after the
applicants approached court, and then the only question would
have
been whether the applicants approached court too soon, which could
have been dealt with by means of a costs order. They chose
to
continue not to deal with the applications.
32
As
pointed out above, the respondents did not put up any evidence or
make any submission regarding what a reasonable time would
have been
from their point of view. This failure is exacerbated by the
respondents' position that (a) the affidavit applications
were
incompetent and (b) people in the applicants' position were not
entitled to apply for citizenship in terms of section 4(3).
This
being the case, a negative decision on the applications would have
been relatively easy to make, and that decision could then
have been
properly reviewed.
33
I
find, therefore, that there is no merit in the contention that the
time allowed to the respondent was grossly unreasonable. I
find also
that in this case the failure to make a decision has resulted in the
decision being unreasonably delayed.
Do
the applicants comply with section 4(3)(b) of the Citizenship Act?
34
This
argument was apparently not raised before the
Ali
court.
35
Section
4(3)(b) requires registration of the birth of the applicant for
citizenship in terms of the Registration Act.
36
The
Registration Act provides that "registration" of a birth is
the registration mentioned in section 5 of that Act. Section
5
provides that the inclusion in the population register of information
from documents relating to births is the registration of
those
births. However, where a non-South African citizen is temporarily in
the Republic, the particulars from the documents are
not to be
included in the population register and the mere issuing of a
certificate is the registration of the relevant particulars.
37
In
terms of the definition of "registration", read with
section 5, then, the mere issue of a birth certificate of (a child
born to) a non-South African citizen who is temporarily in the
Republic is the registration of the birth. For (children of) South
African citizens, and presumably permanent residents, the
registration is the entry in the population register.
38
Section
9 of the Registration Act requires notice of every child born alive
in the Republic to be given, and a birth certificate
or
acknowledgment of receipt of the particulars of the birth to be
furnished to the person who gives that notice.
39
The
regulations in terms of the Registration Act provide that when
particulars are furnished of the birth of a child to South African
citizens, permanent residents and refugees, a birth certificate is
issued with an identity number, and when the child is born to
non-South African citizens who are not permanent residents (or
refugees), a birth certificate is issued without an identity number.
The Refugees Act, 130 of 1998 ("the
Refugees Act"
;) provides
for refugees to be issued with identity documents with identity
numbers, but these at present are not South African
identity
documents but special refugee identity documents.
40
In
all cases, then, a birth certificate is issued. And when the child is
born who is not entitled to have his or her particulars
entered into
the population register, the mere issuing of the certificate is the
registration of its birth in terms of the Registration
Act.
41
The
population register is dealt with in the Identification Act, 68 of
1997 ("the
Identification Act"
;). The
Identification Act
applies
to all South African citizens and people who are lawfully and
permanently resident in the Republic. Every person whose particulars
are entered into the population register must have an identity number
assigned to them.
42
The
birth certificates of the applicants do not have identity numbers,
and are stamped with the words "Alien/Vreemdeling".
This is
consistent with someone who is born to parents who are not South
African citizens, not permanently resident in the Republic,
and whose
particulars do not appear in the population register.
43
The
respondents' argument is that, because people in the applicants'
position are not entered into the population register and do
not have
identity numbers, their births are not registered in terms of the
Registration Act, and they therefore do not comply with
section
4(3)(b) of the Citizenship Act.
44
This
argument makes a nonsense of section 4(3). Firstly, nobody who
otherwise fulfils the requirements of section 4(3) would ever
be
entitled to be entered into the population register on birth. Nobody
could therefore ever be registered as required, and nobody
could ever
apply for citizenship in terms of section 4(3).
45
Secondly,
the section does not require that the person's details be entered in
the population register or that the person have an
identity number.
It only requires registration of the birth in terms of the
Registration Act. And, in terms of the Registration
Act, for a person
who is not entitled to have their details entered into the population
register, the mere issuing of the birth
certificate is the
registration of the birth.
46
The
respondents have not, in their answering affidavit, contended that
the birth certificates of the applicants were wrongly issued,
despite
the email of 2 November 2016 referred to above.
47
The
applicants' births have, therefore, been registered in accordance
with the Registration Act by the issuing of their birth certificates,
and they comply with section 4(3)(b) of the Citizenship Act.
Have
the applicants made out a case that it is appropriate for the court
to order the respondent to grant the applicants' applications
for
citizenship ?
48
Where
an application is brought in terms of PAJA for relief related to the
failure to take a decision, a court may make any order
that is just
and equitable, including ordering the administrator to take the
decision or declaring the rights of the parties in
relation to the
decision, or directing any party to do any thing which may be
considered necessary to do justice between the parties
in terms of
section 8(2) of PAJA. The listed powers of the court are slightly
less in number than those it has when reviewing a
decision actually
taken, but substantively, there is no fundamental difference.
49
In
Ali,
the
relief sought was also that the Court order the respondents to grant
the applications for citizenship. However, the Court did
not do so,
instead ordering the respondents to accept and consider the
applications. The question is whether the relief granted
in this
court, where the facts are fundamentally similar, should be any
different, and, more particularly, whether the interests
of justice
demand a difference in approach.
50
In
Ali,
the
High Court found that to order the respondents to grant the
applications would amount to judicial overreach. The SCA found that
the applicants for citizenship in that case "qualify to be
granted" citizenship, because they satisfied all the
requirements.
However, the SCA did not change that part of the order
of the High Court. It confirmed the order that the respondents must
accept
the applications and decide them within 10 days. That said, it
is not clear that the SCA considered whether any stronger order might
have been appropriate.
51
It
was argued that section 4(3) does not confer a right to citizenship,
but rather a right to apply for citizenship. In my view
it does both.
If one fulfils all the requirements, one then has the right, and the
choice to apply for citizenship, and, having
made the choice to
apply, one then has a right for that citizenship to be granted. There
is no room for the exercise of discretion.
52
It
is the case that, ordinarily, to order the decision maker to make a
decision in a particular way is an order that should only
be made in
exceptional circumstances. The argument before this court was not
that these are exceptional circumstances. The argument
was simply
that there is no basis on which the applications could be refused,
and therefore that the Court could order them to
be granted.
53
In
my view, the specific circumstances of applications in terms of
section 4(3), where it is clear that all the requirements are
fulfilled, are sufficiently exceptional to make an order to grant the
applications in the interests of justice. It is no different,
in the
particular circumstances of this case, to an order declaring the
rights of the applicants,
[6]
or one directing any party to do any thing which the court considers
necessary to do justice between the parties.
[7]
54
For
those reasons, I am satisfied that the approach by the High Court in
Ali
was
clearly wrong. The SCA not having considered the issue, I am not
bound by the SCA's judgment with regard to the relief sought.
Conclusion
55
The
applicants' legal representatives appeared
pro
bono.
There is no reason why their
costs should not be recovered.
56
A
judgment of the Labour Court was handed up,
[8]
in which the unsuccessful respondent was ordered to pay the
applicants' costs where they had been represented
pro
bono
by an attorney. It relied,
inter alia,
on
the judgment of the SCA in
Minister
of Justice and Constitutional Development and Others v Southern
African Litigation Centre and Others,
[9]
in which costs were ordered,
including the costs of two counsel.
57
Legal
practitioners who appear
pro bono
in
matters in which litigants would otherwise not be able to pursue
their fundamental rights, and in particular where the claims
do not
sound in money, ought not in ordinary circumstances to be prevented
from claiming costs. On the contrary, granting of a
costs order in
these circumstances is likely to increase access to justice.
58
In the circumstances I make the
following order:
[1]
The first respondent or his delegated representative is ordered to
grant the applications
of each of the applicants for South African
Citizenship in terms of
section 4(3)
of the
South African Citizenship
Act, 88 of 1995
, within 10 days of this order.
[2]
The respondents are to pay the costs of this application, including
the costs of two
counsel.
S. YACOOB
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANTS:
S BUDLENDER
T MOSIKILI
APPLICANTS'
ATTORNEYS:
CLIFFE
DEKKER HOFMEYR INC
COUNSEL FOR RESPONDENTS:
M BOFILATOS SC
M MOROPA
RESPONDENT'S ATTORNEYS:
THE STATE ATTORNEY, PRETORIA
DATE OF
HEARING:
12 SEPTEMBER 2018
DATE
OF JUDGMENT:
15 MARCH 2019
[1]
This was only raised in the respondents' heads of argument, which
were filed late.
[2]
2018 (1) SA 633 (WCC)
[3]
Minister of Home Affairs v Ali
(1289/17)
[2018] ZASCA 169
(30
November 2018)
[4]
The idea that people should settle for lesser rights when more
complete rights were available to them was also dealt with by
the
Constitutional Court in
Ahmed and Others v Minister of Home
Affairs and Another
2019 (1) SA 1
(CC) which was also brought to
my attention by the parties after the hearing of the matter.
[5]
The Constitution of the Republic of South Africa, 1996.
[6]
as envisaged by section 8(2)(b) of PAJA
[7]
as envisaged in section 8(2)(c) of PAJA.
[8]
Kanku and Others v Grindrod Fuelogic
(C602/2014) [2017]
ZALCCT 26 (21 June 2017)
[9]
2016 (3) SA 317
(SCA)