About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 260
|
|
Nwafor v Minister of Home Affairs and Others (66844/2016) [2019] ZAGPPHC 260 (27 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
Case Number: 66844/2016
In
the matter between:
ANTHONY
OKEY NWAFOR
Applicant
and
MINISTER
OF HOME AFFAIRS
First Respondent
THE
DIRECTOR-GENERAL
DEPARTMENT
OF
HOME AFFAIRS
Second
Respondent
THE
DEPARTMENT OF HOME AFFAIRS
Third Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant, Anthony Okey Nwafor ("Nwafor") is applying
in terms of the
Promotion of Administrative Justice Act 3 of 2000
("PAJA") for the reviewing and setting aside of the
decision of the
first respondent, the Minister of Home Affairs ("the
Minister'') and the second respondent, the Director-General:
Department
of Home Affairs ("the DG") which reads as
follows:
“
:..
I have decided to
deprive you and your family a South African citizenship since the
acquisition thereof was based on a permanent
residence permit that
was acquired through false representation and concealment of material
fact.”
[1]
"1.
According to the available information you obtained your permanent
residence permit
(exemption certificate, with reference number
LEB/42/2003) by means of false representation by concealing the
material fact that
you are married to Mrs Amarachukwu Ebere Nwafor on
(formerly Uduji) on 1 March 2003 in Nigeria and presented yourself as
a bachelor
when entering into a marriage in the Republic of South
Africa with Ms Gladys Sibongile Vilankulu (who was then a minor) on
25 April
2003. Futthermore, the said certificate was issued to you in
conflict of the applicable law in that certificate was issued on 22
January 2004 in terms of the Aliens Control Act, 1991 subsequent to
its repeal on 12 March 2003 by the Immigration Act.”
[2]
[2]
This
matter was for before Constantinides AJ on 28 November 2017. In a
written judgment the court found that due to
"numerous
factual disputes which cannot be decided on. the papers before court"
the
matter is to be referred to oral
evidence.
[3]
[3]
The
matter was then set down for the hearing of the oral evidence on 6
May 2019. The Minister and DG were ready to proceed with
oral
evidence present with their witnesses. Nwafor however requested a
postponement indicating an intention to abandon a certain
portion of
the order of .Constantinides AJ. The Minister and DG agreed and the
matter was accordingly postponed
sine
die.
[4] In
a pre-trial minute dated 9 May 2019 this intention is recorded as
follows:
Ø
"The
matter will no more proceed on Oral Evidence as indicated in the
Court Order dated 28'1' November 201? delivered by the
Honourable
Acting Judge Constantinides.
Ø
The
matter will be placed on opposed motion roll whereof the counsels for
the Applicant and the Respondents will argue the matter.
Ø
There
will be no need to call any witnesses, rather the matter be argued
based on the documents and papers before the court.
Ø
The
applicant will proceed to obtain a preferential date for hearing in
motion court.”
[5]
I am thus now confronted with Nwafor, as the
dominus litis
party,
choosing to proceed on motion proceedings, full well-knowing that the
court has made a finding that there are disputes of
fact in this
matter. ·
[6]
I however first address the two points
in Iimine
argued on
behalf of Nwafor.
The Minister could not have
delegated the power to deprive a citizen to the DG and the
deprivation is thus
ultra vires
the law
[7]
This point was raised, pursuant to the answering affidavit being
filed and served
by the Minister and DG. This point was raised by
means of a supplementary affidavit alleging it was in support of
Nwafor's founding
affidavit. It is quite clear that this
supplementary affidavit was not filed pursuant to, or to address, any
points in the record
filed in terms of Rule 53. The Minister and DG
objected to the supplementary affidavit and sought it to be struck
out.
[8]
It is trite that further affidavits can only be filed with leave of
the court to do
so. No formal objection from the opposing party is
required.
[4]
No such leave of the court was sought. It has been held that where
further affidavits are filed without the leave of the court
the court
can regard such affidavits as
pro
non scripto.
[5]
I accordingly do not accept, or take note, of the content of the
supplementary affidavit.
[9]
However, even if it could be argued,
which is wasn't, that it is a point in law and therefore can be
argued without any reference
to the supplementary affidavit, the
point raised herein stands to be dismissed as being bad in law.
Section 22 of the South African
Citizens Act, No 88 of 1995 ("the
Act'') reads as follows:
"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, excluding a power
referred to in section 5(9) or25,toan 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."
Section 25 is totally irrelevant
to the deprivation of citizenship. Section 5 (9) of the Act reads as
follows:
"(a) Notwithstanding
anything to the contrary contained in subsection (1)(c), the Minister
may under
exceptional circumstances grant a certificate of
naturalisation as South African citizen to an applicant who does not
comply with
the requirements of subsection (1)(c) relating to
residence or ordinary residence in the Republic.
(b) The
Minister shall within 14 days after the commencement of the sittings
of Parliament in each
year table in Parliament the names of any
persons to whom certificates of naturalisation were granted under
paragraph (a) in the
immediately preceding year, including the
reasons for the granting of any such certificate.”
This section is also totally
irrelevant to section 8 of the Citizens Act i.e. only the Minister
can under exceptional circumstances
grant a certificate of
naturalisation to a South African citizen who does not comply with
the requirements of subsection (1) relating
to residence or ordinary
residence in the Republic. This section relates to the granting of
citizenship; not the deprivation thereof.
This point
in limine
is
thus bad in law and is accordingly dismissed.
The "Oudekraal"
principle
[6]
[10]
In the heads of argument on behalf of
Nwafor for the first time it is raised that this principle bars the
Minister from relying
on the unlawfulness of the permanent residence
exemption certificate (LEB/42/2003), or the consequent unlawful
granting of citizenship
until both certificates are set aside by a
court of law.
[11] The
Oudekraal
principle is trite. However the Minister did not, as
argued on behalf of Nwafor, act
ultra vires
in usurping the
function of the court in finding that the permanent residence
exemption certificate was fraudulently obtained. The
reason for this
is that section 8 specifically grants the Minister the power to
deprive citizenship:
"8.
Deprivation of citizenship.
-
(1)
The Minister
may by order deprive any South African citizen by naturalisation of
his or her South African citizenship if he or she
is satisfied that
-
(a)
the certificate of naturalisation
was obtained by means of fraud, false representation or the
concealment of a material fact; or
(b)
such certificate was granted in
conflict with the provisions of this Act or any prior law».
Thus the Minister need not
approach a court to set aside the documents as being fraudulent; the
Minister has the power to do so.
The
Oudekraal
principle is
thus not applicable in these circumstances.
The reasons for the Minister' s
finding
[12]
The Minister deprived Nwafor of his
citizenship for the following primary reasons:
12.1
That Nwafor had entered into marriage
with a South African citizen, Mrs Gladys Sibongile Vilankulu
("Vilankulu") on 25
April 2003. Nwafor did so although he
was at the time already married to Mrs. A.E. Nwafor, a Nigerian wife
on 1 March 2003. Nwafor
had thus misrepresented himself as a
"bachelor" at
the
time of his marriage to the South African wife.
12.2
That Vilankulu, at the time of the
marriage, was a minor, under the then majority age of 21 years old.
12.3
The permanent residence exemption
certificate (LEB/42/203) in terms of the Aliens Control Act 9 6 of
1991 was issued on 22 January
2004 under circumstances where the
Immigration Act had already been in operation for approximately 10
months with it coming into
operation on 12 March 2003.
[13]
Although Nwafor was aware of the
Minister' s reasons by virtue of the letter dated 13 April 2016,
approximately four months before
launching this application, the 32
page affidavit attached to Nwafor' s notice of motion surprisingly
does not address a single
one of these reasons. Atmosphere is created
with many paragraphs as to how Nwafor has been persecuted and
harassed by the Department
of Home Affairs and Dr. Nkadimeng, the
Head of the Department of Health Limpopo branch (not a party to the
proceedings), but never
addressing the real issues before court. In
application proceedings the affidavit must contain the essential
evidence which would
have been led at a trial.
[7]
The founding affidavit in this matter should have contained the facts
as to why the reasons for the deprivation are unlawful, irrational,
unreasonable and unfounded. This should have been done without
citations from case law and without argumentative matter.
[8]
[14] The
replying affidavit for the first time
sets
out any grounds
and facts in support of the notice of motion. The application should
be dismissed on this ground alone as a court
would not permit an
applicant to make a case in reply when no case was made out in the
original application.
[9]
The version and arguments on behalf of Nwafor for the first time
surfacing in the replying affidavit, further ballooning with new
facts and arguments in the supplementary affidavit to the founding
affidavit. I have already found that this supplementary affidavit
should not have been before court without the leave of the court.
This practice of building a case step by step is frowned upon
as an
abuse of process and is prejudicial to any respondent and herein to
the Minister and DG.
[15] On
this ground alone, i.e. no facts set out for the relief sought in the
founding affidavit this application
is to be dismissed.
Merits
of the matter
[16] But,
even, if the court exercised a discretion to entertain the replying
affidavit the application
must fail. It is common cause that there is
a dispute of fact and final relief is sought. Accordingly the
Plascon-Evans
rule is applicable:
"[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues
based on common cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are
not designed to determine
probabilities. It is well-established under the
Plascon-Evans
rule that
where in motion proceedings disputes of fact arise out on the
affidavits, a final order can be granted only if the fact
averred in
the applicant's affidavit, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order.”
[10]
[17] The
version of the Minister pertaining to the unlawful exemption
certificate is to be accepted. To
this application two medical
certificates were attached. The Minister alleged that these two
medical certificates were fraudulent
and submitted evidence from
Mecklenburg Hospital setting out that there are no radiologists at
this hospital and that patients
requiring x-rays are either sent to
Mankweng or Polokwane hospitals for such reports to be issued. The
ingenious reply to this
is that those are not the documents which
were submitted by him to the Department of Home Affairs as the
genuine certificates were
stamped, without stating by whom these
would have been stamped and when it would have been stamped.
Furthermore, both the medical
certificates, one of a radiologist and
the other a medical practitioner, are on the face of it signed by the
same person. On these
facts the respondents' version must be
accepted.
[18]
Pertaining to the non-compliance with the Marriage Act, No 25 of
1961, the marriage register dated
25 April 2003 records Vilankulu's
mother as a witness. She did not consent to the marriage on the date
upon which the marriage
was solemnised. The averred consent given by
Vilankulu' s mother appears to have occurred only two months
thereafter on 26 June
2003. Once again there is nothing untenable,
far fetched, bald or uncreditworthy in this version of the
Minister and the court
accepts same.
[19]
The fact that Nwafor was already married
when he married Vilankulu, on the version of the Minister, must in
terms of the
Plascon-Evans
rule
also be accepted.
[20]
I accordingly make the following order:
20.1
The applicant' s application is
dismissed.
20.2
The costs include the costs consequent
upon the employment of two counsel.
S. POTTERILL
JUDGE OF THE HIGH COURT
CASE
NO: 66844/2016
HEARD
ON: 18 June 2019
FOR
THE APPLICANT: ADV. J.S.C. NKOSI
INSTRUCTED
BY: MWIM Attorneys
FOR
THE RESPONDENTS: ADV.
M.H. MHAMBI
INSTRUCTED
BY: State Attorney, Pretoria
DATE
OF JUDGMENT: 27 June 2019
[1]
Page 54 of the papers
[2]
Page 37 of the record
[3]
Court order dated 28 November 2017
[4]
Hano Trading CC v JR 209 Investments (Pty) Ltd
2015 (1) SA
161(SCA)
at 165A-C
[5]
Standard Bonk of South Africa v Sewpersadh
2005 (4) SA 148
(C) at 153H-154J
[6]
Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others
2010 (1) SA 333 (SCA)
[7]
Molusi v Voges NO
[2015] 3 All SA 131
(SCA} at paras [20] and
[39]
[8]
Reynolds NO v Mecklenberg (Pty) Ltd
1996 (1) SA 75
(W) at 781
[9]
Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting
Co (Durban) (Pty) Ltd
1980 (1) SA 313
(D) at 316A
[10]
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) para [26];
Plascon-Evans Paints Ltd v Van Riebeeck
Points [Pty] Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634-635