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[2018] ZASCA 169
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Minister of Home Affairs v Ali and Others (1289/17) [2018] ZASCA 169; 2019 (2) SA 396 (SCA) (30 November 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1289/17
In
the matter between:
MINISTER OF HOME
AFFAIRS FIRST
APPELLANT
DIRECTOR-GENERAL OF HOME
AFFAIRS SECOND
APPELLANT
and
MIRIAM
ALI FIRST
RESPONDENT
ADEN
NUREDIN
SALIH SECOND
RESPONDENT
KANU
TEKA JORSEN
NKOLOLO THIRD
RESPONDENT
FARIEDA
NSOKI FOURTH
RESPONDENT
CAROLINE
MASUKI FIFTH
RESPONDENT
MURPHY
NGANGA SIXTH
RESPONDENT
Neutral
Citation:
Minister of Home Affairs v Ali
(1289/17)
[2018]
ZASCA 169
(30 November 2018)
Coram:
Lewis, Seriti, Wallis, Mathopo and Molemela JJA
Heard:
9 November 2018
Delivered:
30 November 2018
Summary:
Citizenship Amendment Act 17 of 2010 (the Act) –
Interpretation of s 4(3) of the Act – section does not have a
retrospective
effect – respondents satisfy the requirements of
citizenship by naturalisation – failure of the Minister to
promulgate
regulations for applications for citizenship in terms of s
23 of the Act – the order of the high court directing the
Minister
to accept applications on affidavits does not encroach upon
the doctrine of separation of powers.
ORDER
On
appeal from
: The Western Cape Division of the High Court, Cape
Town (Wille J sitting as court of first instance):
1. The appeal is
dismissed with costs, such costs to include the costs occasioned by
the employment of two counsel.
2. Paragraphs 1 and 2 of
the order of the court a quo are confirmed.
3. Paragraph 3 of the
order of the court a quo is amended to read: ‘The Minister
shall –
3.1 Within one year of
the date of this order make regulations in terms of s 23(a) of the
South African Citizenship Act 88 of 1995
(the Act) in respect of
applications for citizenship by naturalisation in terms of s 4(3) of
the Act;
3.2 Pending the
promulgation of the regulation in 3.1 above, accept applications in
terms of s 4(3)
South African Citizenship Act 88 of 1995
, on
affidavit.’
JUDGMENT
Mathopo
JA (Lewis, Seriti, Wallis and Molemela JJA concurring):
[1]
This appeal concerns the right to obtain citizenship by
naturalisation of a child born in the Republic of South Africa, whose
parents are not South Africans and have not been admitted to the
Republic of South Africa for permanent residence. The issue arises
because the Department of Home Affairs (the Department) refused to
receive and grant the respondents’ applications for citizenship
despite the fact that they satisfied the requirements of s 4(3) of
the Citizenship Amendment Act 17 of 2010 (the Act). The dispute
requires us to answer the question whether the respondents fall
within the category of persons mentioned in s 4(3).
[2]
Section 4(3) of the Act, which came into operation on 1 January 2013,
sets out requirements for citizenship by naturalisation,
as follows:
‘
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
(Act No. 51 of 1991).’
[3]
It is common cause that all the respondents were born in South
Africa, had their births registered in terms of the Births and
Deaths
Registration Act 51 of 1992 (Births and Deaths Act), have lived here
since birth and have no other home apart from South
Africa. The
respondents have been unable to obtain citizenship in terms of the
Act, because the Minister of Home Affairs (the Minister)
interpreted
the section as excluding them and also failed to promulgate the
necessary forms to apply for citizenship. The background
circumstances of the respondents are as follows.
[4]
Ms M Ali (first respondent) was born in Beaufort West, South Africa
on [...] January 1998. Her birth was duly registered in
accordance
with the Births and Deaths Act. Her parents are not South African
citizens, nor have they been admitted into the Republic
as permanent
residents. Her parents are Somali citizens. She has lived in South
Africa since her birth and has no links with her
parents’
country, Somalia.
[5]
Ms A Salih (second respondent) was born in Johannesburg on [...]
January 1998. A full birth certificate was issued to her. Her
mother
is Ethiopian and her father is Sudanese. Her parents have not been
admitted into the Republic for permanent residence. She
and her
parents moved to Cape Town in 1999, where she has lived ever since.
She considers herself as a South African and South
Africa to be her
only home.
[6]
Mr K Nkololo (third respondent) was born in Cape Town in the Mowbray
Maternity Hospital on [...] October 1996. He was issued
with a birth
certificate, though this was later lost. His parents are Angolan. He
and his parents still live in Cape Town. He has
never left South
Africa; has never visited Angola and he does not speak Portuguese. He
considers South Africa to be his home.
[7]
Ms C Masuki (fifth respondent) was born in Tygerberg Hospital on
[...] December 1996. A full birth certificate was issued after
her
birth. Her mother is Congolese and her father is Angolan. She has
lived in South Africa her entire life and has never left
the country.
[8]
Mr Nganga (sixth respondent) was born in Johannesburg on [...]
November 1997. An unabridged birth certificate was issued by
the
Department. His mother is a refugee from the Democratic Republic of
Congo. His parents were married by custom in the DRC. He
has lived in
Cape Town all his life and regards South Africa as his home country.
[9]
All the respondents have been unable to apply for citizenship by
naturalisation because of the Minister’s refusal to recognise
their right to become naturalised citizens in terms of s 4(3) and the
failure to promulgate the regulations for the application
forms at
this stage.
[10]
The respondents contended that they meet all the jurisdictional
requirements to qualify for citizenship by naturalisation in
terms of
the impugned section. Consequently, they brought the current
application (i) in their own interests in terms of s 38(a)
of the
Constitution of the Republic of South Africa 1996; (ii) in the
interests of persons in a similar situation in terms of s
38(b) of
the Constitution; and (iii) in the public interest in terms of s
38(d) of the Constitution.
[11]
The Minister interpreted s 4(3) of the Act to mean that it only
applied to children born after it was enacted on 1 January
2013. The
case for the Minister was that the section cannot be interpreted to
apply retrospectively to children born before 1 January
2013 and who
have attained majority after the enactment of this section. In short,
on the Minister’s approach this section
did not apply even
though a child turned 18 after 1 January 2013. The interpretation of
the Minister was that persons who qualified
for citizenship in terms
of this section were those born on or after 1 January 2013 and such
persons would be eligible to qualify
to apply for citizenship in
terms of this section only after attaining majority on 1 January
2031.
[12]
In view of this interpretation, the Minister failed to promulgate the
regulations giving effect to s 4(3) of the Act as required
by s 23 of
the Act. Frustrated by the inordinate delay and failure of the
Minister to exercise his powers to prescribe the necessary
forms to
give effect to s 4(3) of the Act, the respondents approached the
Western Cape Division of the High Court (the high court)
for a
declaratory order that they qualified to apply for citizenship in
terms of the impugned section. They also sought an order
that the
Minister accept their applications on affidavits.
[13]
In the high court two main arguments were raised in support of the
Minister’s case. The first was that s 4(3) of the
Act cannot
apply to persons who were born before 1 January 2013 but who turned
18 after the enactment of the section. To hold otherwise,
he
contended, entailed that the section would apply retrospectively and
create new sets of rights and obligations on the State,
which was not
intended by the Legislature. The argument of the Minister was that a
retrospective application of the section would
create an unnecessary
flow of applications and burden the already strained resources of the
Department. The second was that prescribing
to the Minister that he
accept the applications on affidavit, a method that was not envisaged
by the Act, amounted to usurping
the powers of the Minister and
disregarded the provisions of the Act dealing with the issuing of
certificates of naturalisation.
[14]
Turning to
the issue of retrospectivity, the argument advanced was that the
impugned section did not seek to take away vested rights
or create
new obligations in respect of past matters or transactions. The
respondents relied on the judgment of this court in
Nkabinde
& another v Judicial Service Commission & others
[1]
where this court said the following:
‘
Literally defined,
a retrospective law is a law which looks backward or on things that
are past; a retroactive law is one which
acts on things that are
past. In common use, as applied to statutes, the two words are
synonymous, and in this connection may be
broadly defined as having
reference to a state of things existing before the act in question. A
retroactive or retrospective law,
in the legal sense, is one that
takes away or impairs vested rights acquired under existing laws, or
creates a new obligation,
imposes a new duty, or attaches a new
disability in respect of transactions or considerations already past.
However, a statute
does not operate retroactively merely because it
relates to antecedent events, or because part of the requisites of
its action
is drawn from time antecedent to its passing, but is
retroactive only when it is applied to rights acquired prior to its
enactment.’
[15]
The respondents contended before the high court that denying them an
opportunity to apply for citizenship on the basis that
the Department
has not yet formulated guidelines infringed upon their constitutional
rights. Ms Ali averred that granting her citizenship
would reduce the
hostility she experiences as being identified as a foreigner in a
country where she was born.
[16]
The high court (Wille AJ) rejected the submissions made on behalf of
the Minister, which were in line with what is set out
in paragraph 11
above. It made the following orders:
‘
1 That the
respondents are to forthwith accept applications on affidavit from
each of the applicants (excluding the fourth applicant),
for the
granting of South African citizenship in terms of section 4(3) of the
South Africa Citizenship Act 88 of 1995 and to decide
on each such
application within ten days of receipt of such application/s.
2. That section 4(3) of
the South Africa Citizenship Act 88 of 1995 applies to persons who
meet the requirements of that section,
irrespective of whether they
were born before or after 1 January 2013.
3. That the respondents
shall:
3.1
Within one year of the date of this order, enact the necessary form/s
to allow for applications in terms of section 4(3) of
the South
Africa citizenship Act 88 of 1995; and
3.2
Pending the enactment of the form/s referred to in paragraph 3.1
above, accept applications in terms of section 4(3) of the
South
Africa Citizenship Act 88 of 1995, on affidavit.’
[17]
It is against the above orders that the Minister now appeals to this
court with leave of the high court.
[18]
Before us, counsel for the Minister conceded that the respondents
complied with all the jurisdictional requirements in s 4(3)
of the
Act and qualify to be granted citizenship by naturalisation in terms
of the Act. Counsel further conceded that s 4(3) of
the Act is a
self-standing section and need not be read or interpreted in
conjunction with s 5 of the Act. I consider these concessions
to have
been properly made. In addition he conceded that the argument based
on retrospectivity was unsound.
[19]
I turn to a new argument raised on appeal by the Minister. It was
submitted that the respondents should have put the Minister
on terms
and requested him to deal with the applications in terms of s 25 of
the Act before launching the present proceedings.
This argument was
untenable. It is difficult to understand on what basis the Minister
could have made any decision in the absence
of the application forms.
The respondents were never given an opportunity to apply. They were
all simply turned away several times
because of the Department’s
attitude to the question of retrospectivity and the fact that
necessary application forms were
not available at that stage. In my
view there was no decision to be set aside or to be reviewed.
[20]
It is clear that the Minister’s argument for the dismissal of
this appeal on this ground alone is consistent with ongoing
attempts
to frustrate and delay the respondents’ application to have
their status recognised. It is not in the interests
of justice and
neither is it just and equitable to send the respondents from pillar
to post simply because the Minister has adopted
a supine attitude
that the regulations will only be promulgated in due course. This
state of affairs cannot be countenanced. The
attitude of the
Minister’s demonstrates unfairness in the treatment of the
respondents and infringes their constitutional
rights. The high court
was justified in intervening by ordering that an affidavit would
suffice. The order of the high court does
not encroach upon the
separation of powers.
[21]
Although
the retrospectivity argument was not pursued before us, in view of
the fact that it was raised in the heads of argument
and debated at
length before the high court I think it is necessary to say something
about the argument briefly. A reading of the
section does not seek to
take away vested rights or create new obligations in respect of past
matters. It is intended to grant
the respondents and similar persons
the right to apply for citizenship when they become majors. My view
is reinforced by the following
facts. When the section came into
operation on 1 January 2013 (i) none of the respondents had yet
turned 18, (ii) none of the respondents
had applied for citizenship
under the provisions of the Act; (iii) none of their applications was
pending in terms of the Act;
and (iv) the Department had not taken
any steps in relation to the citizenship of the respondents. It was
right that their case
does not involve a retrospective application of
the section. The Minister’s argument is clearly unsustainable
and not in
line with the authority of this Court in
Nkabinde
and the
Constitutional Court judgment in
Savoi
and others v NDPP
[2]
.
[22]
The argument relating to paragraph 1 of the high court’s
direction to the Minister to accept applications on affidavits
can be
disposed of quickly. The complaint by the Minister that this order
encroached upon the principle of the separation of powers
ignores the
harsh realities that the respondents experienced at the hands of the
officials of the Department. The submission that
the high court went
beyond its powers by dictating to the Department that it accept
applications on affidavit is misplaced. The
order of the high court
was informed by the Department’s lackadaisical attitude to the
respondents’ applications.
[23]
In the
absence of any remedy available to the respondents and more
particularly since the Minister could not give an indication
as to
when the regulations would be promulgated the respondents were
entitled to a remedy. Mindful of these injustices the high
court
rightly intervened and made the order in paragraph 1. This order was
remedial in nature and in line with what the Constitutional
Court
said in
Head
of Department Mpumalanga Department of Education and another v
Hoërskool Ermelo and another
:
[3]
‘
The
remedial power envisaged in section 172(1)(
b
) is not only
available when a court makes an order of constitutional invalidity of
a law or conduct under section 172(1)(
a
). A just and equitable
order may be made even in instances where the outcome of a
constitutional dispute does not hinge on constitutional
invalidity of
legislation or conduct. This ample and flexible remedial jurisdiction
in constitutional disputes permits a court
to forge an order that
would place substance above mere form by identifying the actual
underlying dispute between the parties and
by requiring the parties
to take steps directed at resolving the dispute in a manner
consistent with constitutional requirements
. . . .’
I
agree with counsel for the respondents that because the order of the
high court does not specify what is to be contained in the
regulations but leaves the discretion to the Minister, it cannot be
said that it encroaches on the separation of powers.
[24]
Another argument raised by the Minister is that the high court’s
order disregarded the provisions of the Act which deal
with the
issuing of certificates of naturalisation. Section 5(1)(
b
) of
the Act applies to persons who have citizenship of another country.
The position of the respondents is different. They have
no
relationship or connection with any country except South Africa, even
though some of their parents may have such connection.
The argument
of the Minister that the respondents are not prejudiced because they
can apply for citizenship in terms of s 2(2)
of the Act or for
refugee status under the
Refugees Act 130 of 1998
is misplaced.
Refugee status does not confer a right to vote. It is a status
conferred on someone whose true home is elsewhere.
It is an affront
to deny the respondents the right to apply for citizenship in a
country where they were born, have lived in and
which is the only
country they have ever known.
[25]
What remains is whether the orders of the high court were overbroad.
As stated earlier the respondents satisfied all the requirements
in
terms of s 4(3) of the Act. The attitude of the Department in
refusing to accept their applications on affidavits was correctly
rejected by the high court. Counsel for the Minister could not point
us to any deficiencies in the proposed application by means
of
affidavit. The order of the high court was necessary, given the
Minister’s inordinate delay.
[26]
As regards paragraph 2 of the order of the high court, there is no
rational purpose to be served or achieved by unfairly discriminating
between children born before 1 January 2013 and those born after 1
January 2013. In my view preventing children born prior to 1
January
2013, even though they have lived in South Africa since birth and
have attained majority thereafter, is unfairly discriminatory.
The
interpretation advanced by the Minister does not promote the spirit,
purport or objects of the Bill of Rights. It follows that
the orders
of the high court are not overbroad.
[27]
In the result the following order is made:
1. The appeal is
dismissed with costs, such costs to include the costs occasioned by
the employment of two counsel.
2. Paragraphs 1 and 2 of
the order of the court a quo are confirmed.
3. Paragraph 3 of the
order of the court a quo is amended to read: ‘The Minister
shall –
3.1
Within one year of the date of this order make regulations in terms
of s 23(a) of the South African Citizenship Act 88 of 1995
(the Act)
in respect of applications for citizenship by naturalisation in terms
of s 4(3) of the Act;
3.2
Pending the promulgation of the regulation in 3.1 above, accept
applications in terms of s 4(3)
South African Citizenship Act 88 of
1995
, on affidavit.’
___________________
R
S Mathopo
Judge
of Appeal
APPEARANCES:
For
appellant: N Cassim SC
G
Papier
T
Mayosi
Instructed
by:
State
Attorney, Cape Town
State
Attorneys, Bloemfontein
For
respondent: S Budlender
N
Mayosi
Instructed
by:
Legal
Resources Centre, Cape Town
Webbers
Attorneys, Bloemfontein
[1]
Nkabinde & another v Judicial Service Commission & others
[2016] ZASCA 12
;
[2016] 2 All SA 415
(SCA);
2016 (4) SA 1
(SCA) para
62.
[2]
Savoi and others v National Director of Public Prosecutions and
another
[2014] ZACC 5
;
2014 (5) BCLR 606
(CC);
2014 (1) SACR 545
(CC);
2014 (5) SA 317
(CC) para 83.
[3]
Head of Department: Mpumalanga Department of Education and another v
Hoërskool Ermelo and another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) para 97.