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[2019] ZAGPPHC 348
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Minister of Home Affairs and Others v Jose and Another; In re Jose and Another v Minister of Home Affairs and Others (38981/17) [2019] ZAGPPHC 348 (12 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA)
CASE
NO: 38981/17
In the
matter between:
THE
MINISTER OF HOME
AFFAIRS
First Applicant
DIRECTOR-GENERAL:
DEPARTMENT
OF HOME
AFFAIRS
Second Applicant
DISTRICT
MANAGER OF OPERATIONS: JOHANNESBURG
DEPARTMENT
OF HOME
AFFAIRS
Third Applicant
OFFICE
MANAGER: JOHANNESBURG REGIONAL OFFICE
DEPARTMENT
OF HOME
AFFAIRS
Fourth Applicant
and
JOSEPH
EMMANUEL
JOSE
First Applicant
JONATHAN
DIABAKA
“JUNIOR”
Second Applicant
In re:
JOSEPH
EMMANUEL
JOSE
First Respondent
JONATHAN
DIABAKA
“JUNIOR”
Second Respondent
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
J:
1 The
applicants were the respondents in the main application. For
convenience and to avoid confusion I shall refer to the applicants
for leave to appeal, collectively, as “the respondent”
unless it is necessary to distinguish amongst them. The respondent
seeks leave to appeal to the Supreme Court of Appeal against the
judgment and order I handed down on 15 March 2019. I refer to
the
respondents in the application for leave as “the applicants”.
2 I am
indebted to the parties’ legal representatives for agreeing to
argue the application for leave in Johannesburg.
3 The
respondent sought leave on the grounds that the Court erred in:
3.1. finding that there was no uncertainty as to which applications
were lodged and/or adjudicated upon by the respondent;
3.2. finding that, no application having been received and / or
considered by the respondent, alternatively that there was
uncertainty
as to which application was to be considered, the
decision was one in terms of section 6(2)(g) of the Promotion of
Administrative
Justice Act, 3 of 2000 (“PAJA”) and had
been unreasonably delayed, and
3.3. finding that there was no room for discretion in applications of
this nature and, on that basis, having ordered the Minister
to issue
citizenship to the applicants
4 The
application was opposed, and in addition to dealing with the grounds
of appeal, the applicants raised a point
in limine
, submitting
that the notice of application for leave to appeal was fatally
defective.
5 Both
parties provided heads of argument to me on the day of the hearing of
the application for leave. Mr Mosikili handed his up
in court, while
Mr Bofilatos caused his to be emailed to me after court as he had
omitted to provide a copy for the court. Judgment
was therefore
slightly delayed so that I could consider Mr Bofilatos’s heads.
6 Mr
Bofilatos submitted that leave should be granted on both grounds set
out in
section 17(1)(a)
of the
Superior Courts Act, 10 of 2013
. That
is, that the appeal would have a reasonable prospect of success, and,
in any event, that there is some other compelling reason
why the
appeal should be heard.
7 I
deal in this judgment first with the applicants’ point
in
limine
, then with the respondent’s grounds of appeal.
THE
POINT
IN LIMINE
8 It
was submitted for the applicants that the notice of application for
leave to appeal was fatally defective, because it was extremely
brief
and did not sufficiently clearly and ambiguously set out the grounds
on which the application was based. For that reason,
it was
submitted, the application did not comply with
Rule 49(1)(b).
0
cm; line-height: 150%">9 The
applicant’s counsel referred to a number of authorities
elaborating on this principle, and it
is obviously correct. The
grounds must be sufficiently clearly stated to enable both the court
and the respondent to the application
for leave to know what case the
applicant seeks to make out.
10
I asked Mr Mosikili whether he was in any doubt, substantively, about
what the grounds of the respondent’s application
for leave
were, and he agreed that he was not. I also was not in any doubt, on
receiving the application for leave. Having heard
argument and read
the written submissions, my belief that I understood what the grounds
were was reinforced. Mr Mosikili also did
not raise any issues on
which he was “ambushed” or which were ambiguous in any
way.
11
It is true that the second ground of appeal listed in the notice of
application for leave contained a typographical error,
but taking
into account that the relevant section of PAJA was cited, in my view
it was clear what was meant.
12
I agree that, to an objective bystander, or another court if seized
with the application, or if other counsel had been
representing the
applicants, that the application for leave may have been problematic.
But in this case, nothing will be served
by upholding the point
in
limine
, and there was no prejudice to anyone caused by the
brevity of the notice. For that reason, and I must emphasise that
that is purely
in the circumstances of this case, I find that there
is no merit in the point
in limine
.
UNCERTAINTY
AND UNREASONABLE DELAY
13
The applicants in this matter had caused letters of enquiry to be
submitted to the Department of Home Affairs, requesting
assistance
with making applications for citizenship in terms of section 4(3) of
the South African Citizenship Act, 88 of 1995 (“the
Citizenship
Act”). When no assistance was forthcoming, they submitted
applications in the form of affidavits. This is because
there was no
prescribed form for applications for people in the applicants’
position.
14
The respondent has maintained the position put forward in the
answering affidavit and at the hearing of the main application,
that
the first letters submitted were also applications (although it is
clear from the face of the letters and from the respondent’s
own view of what applications should have been that they were not)
and that therefore there was uncertainty about which “application”
by each applicant had to have been considered. This despite nobody
from the offices of the respondents to whom the applicants’
legal representatives addressed enquiries responded to say anything
of the sort.
15
This position was also fundamentally opposed to one of the
respondent’s original primary arguments that no applications
had been received at all because the applications had not been made
on the correct forms.
16
The contention was that, in those circumstances, there could have
been no unreasonable delay in making the decision because
the
respondent could not make the decision as he didn’t know what
he had to decide. This was the second ground of appeal.
17
These submissions were made at the hearing of the main application. I
considered them carefully at the time and have done
so again. I
remain convinced that I have dealt with them correctly in the
judgment and find that there is no merit in these grounds.
18
In addition, Mr Bofilatos submitted at the hearing that I had wrongly
imposed on a reverse onus on the respondent in finding
that he had
not disclosed to the Court what a reasonable period of time would be,
and that the time period allowed to the respondent
before approaching
the court was grossly unreasonably short. This was also alleged in
the respondent’s affidavit and argued
in the main application.
19
Clearly there was no reverse onus. The answering affidavit made a
positive allegation that the time period allowed before
bringing this
application (ten months and six months regarding the first and second
applicants respectively) was too short. Only
the respondent could
know how much time would be required and it was up to it to disclose
this to the Court.
20
In any event, none of the officials involved made any communication
to the applicants or their legal representatives to
say that more
time was needed to consider the applications. And taking into account
that their position was that no proper application
had been received,
it is obvious that no period of time could ever have been sufficient.
THE
EXERCISE OF DISCRETION
21
This ground is based on the order, in terms of the notice of motion
in the main application, that the respondent grant
the applicants’
applications for citizenship. The respondent’s contention is
that, as in the case of
Ali and Others v Minister of Home Affairs
and Another
2018 (1) SA 633
(WCC), I ought simply to have ordered
the Minister to
consider
the applications.
22
It was submitted in the application for leave to appeal, as in the
main application, that there are no exceptional circumstances
permitting the order, and that it amounts to judicial overreach and
infringes on the principle of separation of powers.
23
Mr Bofilatos was once again unable to show me on the papers, or make
any other submission, regarding what discretion was
required to be
exercised by the relevant officials.
24
It was submitted, however, that the merits of the applications had
never been dealt with, and therefore that a decision
on the merits of
the applications for citizenship was not yet appropriate.
25
However, the merits are dealt with in the answering affidavit, and
they were dealt with at the hearing of the main application.
The
applicants’ allegations of the facts founding their contention
that they fulfil the requirements of section 4(3) of the
Citizenship
Act are admitted.
26
Mr Bofilatos submitted that these admissions were “conditional”.
That is, that they were made purely for the
purposes of this
application. Only one of the admissions were in fact identified in
the answering affidavit as being only for the
purposes of this
application. But even if that “condition” were expanded
to every admission in the affidavit, one must
then look at what the
application was for the purposes of which the affidavit was made.
27
From the beginning, the applicants sought an order that the Minister
grant
rather than
consider
their applications for
citizenship. The admissions were made in an affidavit intended to
answer the case made out for that particular
relief.
28
Absent any indication of what discretion or expertise may need to be
applied in considering the applications for citizenship,
there is no
overreach, where all the criteria have been established, in making
the order sought. There is an allegation in the
written heads of
argument that the respondents have failed to establish their rights
to be granted citizenship, “on their
own facts”. It was
not pointed out what was missing, nor could I find anything missing.
29
I find therefore that there is no merit in this ground of appeal and
that an appeal on this ground would have no reasonable
prospect of
success.
OTHER
COMPELLING REASONS
30
Other “compelling reasons” contained in the heads of
argument were that the matter is of immense importance
to the
respondent, and that there is a need for the development of the
principles relating to judicial deference, and what time
period may
be unreasonable for a department such as the Department of Home
Affairs to delay in making a decision.
31
In my view the reach of the judgment in this matter is relatively
small. It is limited to the specific facts of this case,
and to the
particular manner in which the respondent has chosen to answer the
case. It would only apply to matters in which it
is established that
no discretion is required to be exercised, where all the relevant
facts for the decision have been established,
and where the
Department concerned has acted in the manner set out in the papers
and in the judgment at issue.
32
Regarding the reasonable time period point it was submitted that the
respondent had so many applications to deal with and
the finding
regarding the reasonable time would impact those applications. That
is a factual issue, regarding which the respondent
ought to have
placed the relevant facts, of which it has peculiar knowledge, before
the Court. It chose not to.
33
My finding is limited only to the facts in this case. It has no
impact on how the respondent deals with any other matter,
except, of
course, if the relevant officials decide as a result to inform people
when more time is needed and to take the Courts
into their confidence
regarding how much time may be considered reasonable.
34
I therefore do not consider any of these reasons to be compelling.
35
However, it is clear that, since the Supreme Court of Appeal was not
called upon to deal with the issue of the relief granted
in the
Ali
case, and whether it may also have been appropriate to order the
Minister to simply grant the applications for citizenship, there
are
conflicting High Court judgments on exactly the same issue, that is,
whether a decision on an application in terms of section
4(3) of the
Citizenship Act, where all the relevant facts have been established,
requires the exercise of judicial deference. It
is not clear whether
the requirements had been clearly established in the
Ali
matter
but I accept that there is a difference in approach between the two
Courts and that it is in the public interest and the
interests of
justice for the Supreme Court of Appeal to determine that difference.
36
As far as costs are concerned, the applicants’ counsel are
acting
pro bono
and it is not disputed that they are poor. I
see no reason to either order that they bear the costs or that costs
be in the appeal,
as they are
bona fide
attempting to enforce
their constitutional rights
37
In the circumstances I make the following order:
[1] The application for leave to appeal is granted only on the
question whether it was competent in the particular circumstances
of
this case to order the Minister to grant (as opposed to consider) the
applicants’ applications for citizenship.
[2] Save as set out in [1] above, the application is dismissed.
[3] Each party is to pay its own costs.
_______________
S.
YACOOB
JUDGE OF
THE HIGH COURT
COUNSEL
FOR APPLICANTS: 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: 06 AUGUST 2019
DATE
OF JUDGMENT: 12 AUGUST 2019