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
>>
2015
>>
[2015] ZAGPPHC 763
|
|
Tima and Others v Minister of Home Affairs (34392/2014) [2015] ZAGPPHC 763 (9 July 2015)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
9/7/15
CASE
NO: 34392/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
SOLOMON
TIMA
First
Applicant
MEMORY
TIMA
Second
Applicant
SHAUN
TIMA
Third
Applicant
OWEN
TIMA
Fourth
Applicant
and
MINISTER
OF HOME
AFFAIRS
Respondent
REASONS
FOR ORDER
MAKGOKA,
J
[1]
On 9 July 2015 I made an order setting aside, with costs, the
respondent's decision refusing the applicants' application for
permanent residence and remitted the matter to the respondent for
reconsideration. I undertook to furnish the reasons for the order
later. These are the reasons.
[2]
The matter concerns a decision of the respondent, the Minister of
Home Affairs (the Minister) made on 8 November 2013 in terms
of s
31(2) of the Immigration Act 13 of 2002 (the Act), refusing the
applicants' application for the right of permanent residence
in South
Africa. The applicants seek an order setting aside that decision, and
for this court to substitute its own decision for
that of the
Minister, by granting them an exemption for permanent residence in
South Africa. In addition, the applicants seek the
court to "confirm"
their permanent resident status in South Africa, and "to further
issue non-citizen identity documents
and/or passports" to them.
In the alternative to the above, the applicants seek referral to the
Minister to reconsider their
application. The relief sought by the
applicant is opposed by the Minister.
[3]
Section 31(2) of the Act clothes the Minister with a discretionary
power to grant a foreign national the right of permanent
residence in
South Africa. It provides:
"(2)
Upon application, the Minister may under terms and conditions
determined by him or her -
(b)
grant a foreigner or a category of foreigners the right of permanent
residence for
a specified or unspecified period when special
circumstances exist which would justify such a decision: Provided
that the Minister
may-
exclude
one or more identified foreigners from such categories; and
for
good cause, withdraw such rights from a foreigner or a category
of foreigners:
(c)
for good cause, waive any prescribed requirement or form; ..."
[4]
The facts
are these.
The first
and second applicants
are husband
and wife. The third and fourth applicants are the couple's children.
The first applicant alleges that he was born in
Evaton, South Africa
to a Zimbabwean mother on 20 November 1983.
According
to
him,
when he
was 10
years
old, his
mother
abandoned him. He was
left in the
care of one
Zanele
Tima, a
South African.
He was
brought
up by
Ms Zanele
Tima as her own child, hence the adoption of the surname, Tima.
[1]
[5]
The first applicant states that he grew up in Evaton. He never went
to school. His mother's whereabouts are said to be unknown.
His birth
was never registered with the department of Home Affairs in South
Africa. When he turned 16 years old in 1998, he wished
to apply for a
South African identify document. He says that at that stage he
believed that he was a South African citizen who
was entitled to be
issued with a South African identity document. During that time,
Zanele got involved in a love relationship
with a Mr Lamola (Lamola)
who played a father-figure role to him. On 1 March 2000 Lamola
accompanied him to a Home Affairs department
office in Potchefstroom
to apply for a South African identity document.
[6]
Because his birth was not registered in South Africa, he first had to
apply for late registration of his birth. As he is completely
illiterate, he relied on Lamola to complete the form on his behalf.
In the form, Lamola stated that he was Zanele's biological
son. He
was issued with a South African identity document and a passport on
the basis of the information furnished to the department
of Home
Affairs by Lamola. During 2001 Lamola left Zanele after their
relationship had terminated and
went
to live in Mokopane. Later, he also left Evaton and settled in
Mokopane in Limpopo Province, where he practised as a traditional
healer.
[7]
The first applicant further states that during the early part of 2003
he visited Zimbabwe where he met the second applicant
through the
latter's grandmother. Through 'the intervention' of the second
applicant's grandmother, he and the second applicant
started a long
distance courtship which lasted about 5 months. He again visited
Zimbabwe in August 2003 during which he and the
second applicant got
married to each other, on 30 August 2003.
[8]
Shortly after their marriage, he obtained a permit from the South
African consulate in Harare, Zimbabwe, for the second applicant
to
accompany him to South Africa. He says that up to that point he
believed himself to be a South African. On 3 September 2003
he was
accompanied to South Africa by the second applicant, where they
settled in Mokopane. On 31 May 2004 the couple's first born,
the
third respondent, was born. On 11 November 2004 the second applicant
was issued with a permanent residence permit. On 3 March
2006 she was
issued with a South African identity document.
[9]
During early 2007 the first applicant applied to the department of
Home Affairs in Mokopane for the citizenship of his wife,
the second
applicant. An interview was conducted with the first applicant by an
immigration officer. In that interview, he was
questioned about the
information furnished when he applied for late registration of birth
as fully discussed in paras 6 and 7 above.
I pause here to mention
that it is common cause that the late registration of the first
applicant was based on false information.
For example, it was stated
that Zanele was the first applicant's biological mother, and that
Lamela was Zanele's brother, thus
the first applicant's uncle.
[10]
After these discrepancies were pointed out by the immigration
officer, the first applicant signed a statement prepared by the
immigration officer. The statement stated that the first applicant's
mother was a Zimbabwean who came to South Africa in 1968.
She died
during or about 1993, whereafter she was brought up by Zanele, whose
whereabouts were unknown. Zanele had told him that
although he had a
Zimbabwean inoculation mark (birth mark), he was born in South
Africa.
[11]
After the statement was made, the first applicant was arrested and
charged with contravention of s 49(14) of the Act for
misrepresentation
of facts when applying for a South African identity
document. He was issued with a notice to appear in court on 9 March
2007. The
notice to appear in court had an option to pay an admission
of guilt fine of R3 000. The first applicant opted to pay the
admission
of guilt fine, instead of appearing in court.
[12]
The effect of the admission of guilt meant that the first applicant's
presence in South Africa was illegal. It followed that
he had to
leave the country. Accordingly, an order to that effect was issued in
terms of s 32(2) of the Act in terms of which he
was given until 30
March 2007 to leave South Africa. Simultaneously, the first applicant
noted his intention to appeal the decision
to deport him. On 12 March
2007 a notification was issued by the immigration officials for the
deportation of the second applicant.
[13]
After an abortive urgent application in May 2007 by the first and
second applicants to prevent the deportation of the second
applicant,
this court granted an order by agreement on 17 July 2007, also on an
urgent basis, staying the deportation of the second
applicant pending
the consit.feration of a representation in terms of s 31(2)(b) and
(c) of the Act, which application was submitted
to the Minister on 31
July 2007. The Minister did not timeously consider the application.
[14]
The first and second applicants launched an application in this court
on 26 October 2010 to compel the Minister to consider
the
application. On 3 February 2011 this court ordered the Minister
to make a determination regarding the application "within
three
days". On 14 February 2011 the Minister raised certain queries
in respect of the application. The response to those
queries was
furnished to the Minister on 1 February 2013. On 8 November 2013 the
Minister declined the application for exemption
on the basis that the
first applicant had admitted to have obtained the South African
identify document fraudulently. Accordingly,
the first applicant and
his family were advised to make preparations to leave the country.
The Minister's response triggered the
present application, which was
launched on 14 May 2014.
[15] The
applicants rely primarily on five grounds for reviewing the
Minister's decision. First, it is contended that the Minister
had
taken irrelevant considerations and/or factually incorrect
considerations into account in that the first applicant did not
intentionally participate in the fraudulent representation when the
late registration of birth was registered. Second, it is argued
that
the decision was taken without considering the relevant available
information, among others, that the first applicant was
born and
raised in South Africa, and thus has no roots in Zimbabwe and that
him and his family had lived in the country since 2007.
Third, it is
said that the first applicant contributes to the South African
economy. Fourth, it is stated that the Minister took
the decision in
an arbitrary or capricious manner by focusing only on the false
registration of birth. Fifth, the applicants contend
that the
decision was not rationally connected to the purpose for which it was
taken.
[16]
It is further submitted that the Minister should have found
that special circumstances existed to grant the exemption
in terms of
s 31(2)(b) of the Act, alternatively, to find that good cause existed
to grant the applicants an exemption in terms
of s 31(2)(c) of the
Act. That evidence is said to be constituted by the following
factors: that the first applicant was born in
South Africa and that
he had spent his entire childhood and adult life in South Africa;
that the first and second applicants contribute
towards the economy
in South Africa and have not been a burden to the State; and the
adverse effect the refusal of the exemption
application would have on
the applicants. It was further contended that even if the Minister
had correctly accepted that the first
applicant participated in
making fraudulent statements of fact when the registration of birth
form was completed, that fact alone
should not have outweighed all
the other factors which supported the granting of exemption.
[17]
On behalf of the Minister, it is emphasized that the first applicant
obtained both the South African identity document and
the passport
fraudulently, and that he should not be allowed, when he is caught
out in his fraud, to resort to an application for
exemption. The
upshot of the argument is that fraud cannot tenably give rise to a
right to be exempted in terms s 3(2) of the Act.
It is further
contended that the first applicant approbates and reprobates as to
his citizenship. It is said while he contends
to be a South African
citizen and born in South Africa, he at the same time, applies for an
exemption on the basis that he is a
foreigner.
[18]
In considering the contentions of the parties, I must guard against
considering the Minister's decision on an after-the fact
basis. I
must confine the enquiry to the reasons furnished by the Minister for
refusing the exemption application. In her letter
rejecting the
application, the Minister stated the following:
"I
have considered all the information at my disposal and in view of the
fact that Mr. Tima has admitted to being a Zimbabwean
national who
obtained his South African citizenship fraudulently and is unable to
provide any documentary evidence that his biological
mother was a
South African citizen or that he has resided in the country all his
life, I have decided not to grant an exemption
to Mr. and Mrs Tima,
as no special circumstances exit Mr. Tima and his family must make
the necessary arrangements to leave the
country."
[19]
It is clear from the Minister's letter, and the stance taken on
behalf of the Minister in these proceedings, that the only
consideration taken into account was that the applicant is possibly a
foreigner from Zimbabwe who had obtained the South African
identity
document and passport fraudulently. While this is a very important
consideration, it is certainly not the only one. The
Minister had to
consider whether there existed 'exceptional circumstances' justifying
the exemption. See, for example,
Littlewood
and Others v
Minister
of Home Affairs and
Another
.
[2]
[20]
In the context of the applicants' application, the Minister was
enjoined to consider the aspect of false information within
the
totality of factors, including the explanation given by the first
applicant of the circumstances under which the false information
was
furnished when the late registration of birth was applied for. In
particular, the Minister was expected to consider whether,
despite
the false information, special circumstances existed for
granting the permit. In this regard, the following factors
should
have come into reckoning: that the first applicant's wife and
children have lived with him in South Africa since 2007; that
the
first applicant is self-
employed
as a traditional healer and reportedly providing employment for at
least two people in South Africa.
[21]
Without doubt, the fraudulent registration of birth, and the
subsequent obtaining of a South African identity document based
on
that, should be a serious concern for the Minister. However, there
is an explanation for that by the first applicant. The Minister
might have considered the explanation to be implausible, deserving of
an outright rejection. But this is not apparent from her
decision. It
is not clear from the Minister's decision that this was considered at
all. It might well be that when considered in
the light of all other
factors, this factor emerges as the key one on which the Minister's
decision rests.
[22]
It is clear from the reasons advanced in the Minister's letter that
she failed to apply her mind to any of the above, and to
the overall
question whether special circumstances exist. It was an impermissible
approach for the Minister to simply concentrate
on only one factor
and base her decision on that factor alone - despite how important
she may have considered it to be. She could
have, for example, given
consideration to granting a temporary permit subject to a condition
that the first applicant applies for
the review and setting aside of
the admission of guilt fine.
[23]
At the risk of repetition, all what is required by the section is a
demonstration by the Minister that the decision was taken
after
taking into account all relevant factors, and not only one. To that
extent, I conclude that the Minister failed to consider
whether
'special considerations' existed justifying an exemption. This
means that the Minister has failed to exercise the
discretion
conferred on her by the Act. Her decision thus falls to be set
aside.
[24]
I
now
consider
whether the court should substitute its
own
decision for that of the Minister or whether the matter should be
remitted to the Minister to reconsider the
decision.
Unsurprisingly,
the
applicants
contend
for
substitution,
while
the
Minister requests,
in the
event of the decision
being set
aside, the
remittal of
the matter to him
[3]
for reconsideration. The law in
this regard
is
well-settled.
Courts will not
lightly
interfere
with
the
exercise
of
a
discretionary
power
of
the
executive
or
administration.
[25]
In terms
of s
8(1)(c)(ii)(aa)
of the
Promotion
of Administrative
Justice Act
3 of 2000
the
court
has
the
discretion
to
substitute
the
administrative
action
in
"exceptional cases". What constitutes
'exceptional'
was considered in
Gauteng
Gambling
Board
v
Silverstar
Development
Ltd
and
Others
[4]
,
where
the
Supreme
Court of
Appeal stated:
'Since
the normal rule of common law is that an administrative organ on
which a power is conferred is the appropriate entity to
exercise that
power, a case is exceptional when, upon a proper consideration of all
the relevant facts, a court is persuaded that
a decision to exercise
a power should not be left to the designated functionary. How that
conclusion is to be reached is not statutorily
ordained and will
depend on established principles informed by the constitutional
imperative that administrative action must be
lawful, reasonable and
procedurally fair'.
[26]
In the present case, it is contended on behalf of the applicants that
'an exceptional case" has been made out for the
court to
substitute its own decision for that of the Minister. The following
is said to be exceptional: that Minister had sufficient
time to
consider the 'extremely persuasive evidence' which the applicants
offered in their exemption application; that the Minister
had
adopted a delaying approach to the matter, and had to be
compelled by this court to take the decision; and that when
the
decision was eventually taken, it was not properly considered.
[27]
It is submitted further that the decision cannot
be left to the Minister for reconsideration,
for
following reasons: that the facts which are now before the court were
available to the Minister when she made the decision,
and that it is
unlikely that "more persuasive facts" will arise if matter
is remitted; the length of time over which
the Minister failed to
take a decision, and the "inherent urgency" of the matter;
and that the evidence justify a finding
that the applicants should
have been granted exemption.
[28]
I do not share the applicants' enthusiasm. It is by no means clear
that the applicants are entitled to an exemption. The fact
is,
objectively, the first applicant has pleaded guilty and paid an
admission of guilt fine for having obtained a South African
identity
document on the basis of false information provided in the
application for late registration of birth. Such admission
of guilt
stands as a criminal offence against the first applicant.
[29]
The applicants say that the admission of guilt and the payment of the
fine was not the result of a proper and truthful
admission of
the allegation that the first applicant misrepresented the facts when
he applied for a South African identity document.
But this is the
mere say so of the first applicant. Until such conviction is set
aside by a competent court, the conviction stands
against the first
applicant. It is worth noting in this regard that the first applicant
does not appear to have taken any steps
to have that admission of
guilt set aside - at least it does not appear from the papers in the
present application.
[30]
In the
absence of an order
by a
competent
court
setting
aside the
conviction, the
court
would
be
sanctioning
an
illegality
if
it were
to
grant
the
exemption
in the face
of the
first applicant's
criminal
conviction.
That,
a court
cannot competently do. As
succinctly
explained by
the
Supreme
Court
of
Appeal,
albeit
in
a
different
context:
[5]
"If
this court were to direct that possession of the vehicle be restored
to the appellant, it would be 'lending its imprimatur
to an
illegality'. Consequently, were this court to grant the relief
sought, it would be party to allowing 'a state of affairs
prohibited
by law in the public interest'. As Innes CJ pointed out in
Hoisain
v Town Clerk,
Wynberg
1916 AD 236
at 240
'It
is sought to compel the Town Clerk to place the applicant's name upon
the statutory list; he can only do that upon the grant
of a
certificate by the Council, which that body has definitely refused to
give. Such a certificate is not in truth in existence.
So that the
Court is asked to compel the Town Clerk to do something which the
Statute does not allow him to do; in other words
we are asked to
force him to commit an illegality.'
In
Essop
v Abdullah
1988 (1) SA 424
(A), this court
restated the principle that no court will compel a person to perform
an illegality. The relief sought by the appellant,
namely possession
of the vehicle, would have the result of compelling the police to
commit an illegality".
(footnotes
omitted)
[31]
Regarding the false information furnished during the application for
late registration of birth, I make this observation. The
first
applicant lays the blame on Lamola for that. It would be recalled
that among others, it was there stated that Zanele was
the first
applicant's biological mother. The first applicant says that he did
not know what Lamola had stated, as he supposedly
is illiterate.
[32]
It was argued on behalf of the applicants that save for the false
representations by Lamola as stated above, concerning the
identity of
the first applicant's mother, the first applicant never represented
that his mother was a South African citizen. Thus,
so is the
argument, the Minister should not have had any expectation that the
first applicant had to provide documentary evidence
that his
biological mother was a South African.
[33]
I disagree. It is not correct that the first applicant never
represented that his mother was a South African citizen. He did.
In
the interrogation and declaration questionnaire in terms of s 33(4)
of the Act, and to the question as to the identity of his
parents,
the first applicant stated his mother's names to be 'Zanele Norra
Tima'. It should be remembered that Zanele Tima
is the South
African woman who supposedly brought up the first applicant after his
biological mother, Nora, had deserted him.
[34]
By naming
Zanele
Tima,
a
South
African,
as
his mother,
the
first
applicant
created an impression that he
was born of
a South African citizen, thus perpetuating the
misrepresentation
of
facts
similar
to
when
the
late
registration
of
birth
was applied
for.
Nora
is supposedly the name of his biological mother.
This is
according
to
the
first
applicant
himself,
where, in
his
founding
affidavit, he
made
a
clear
distinction between his
supposed
biological mother named Nora (Zimbabwean), and his
supposed
de
facto
mother,
Zanele
[6]
(supposedly
South
African).
Lamela
also makes
the
same
distinction
between
the
two
women, and
of
the
name
of
the
applicant's
supposed
biological
mother.
[7]
[35]
Another discrepancy in that questionnaire concerns his place of
birth, which he stated it to be Potchefstroom. Furthermore,
in the
duplicate original marriage register when the first and second
applicants got married, the first applicant's residential
address at
the time of marriage was given as no. 6 Mimosa Midder Park,
Potchefstroom, Republic of South Africa. The supposed birth
and
residential place of the first applicant as stated in these document
is contrary to his version in the present application,
according to
which he was born and bred in Evaton, until he moved to Mokopane in
Limpopo Province. Potchefstroom was mentioned
only as the place he
applied for late registration of birth and the identify document, and
never as a place of birth or residence.
[36]
What is clear from the answers furnished by the first applicant in
the forms referred to above, is that the first applicant
clearly
presented himself as a South African, born of a South African mother.
This he confirms in the present application when
he seeks to justify
this. He says that at that stage he considered himself to be a South
African. It is in that context that the
Minister's statement that
the first applicant was probating and approbating as to his
citizenship, and that had failed to
furnish proof that the first
applicant was born of a South Africa motheriwas made, and should be
understood.
[37]
It is also instructive that right until he was confronted about his
citizenship in early 2007, the first applicant had presented
himself
as a South African. Only when this appeared problematic for him, he
changed tune, and sought foreigner exemption under
s 31(2) of the
Act, thus confirming his status as a foreigner. The criticism against
the Minister in this regard is therefore unwarranted.
The first
applicant's assertion that when he presented himself as a South
African he considered himself as such, rings hollow because
at that
stage, on his own version, he was aware that he was born of a
Zimbabwean mother, which made him a Zimbabwean.
[38]
These discrepancies, to a great extent, undermine the first
applicant's
bona
i
t
ides,
especially his claim to have been born in
South Africa. He also seemingly does not deny the fact that he has a
Zimbabwean 'birth
mark' - whatever that means. But if this is an
indication of a person having been born in that country, this further
undermines
the claim of the first applicant to have been born in
South Africa. These are issues that only the Minister and the
immigration
officials can thoroughly investigate and decide on. For
these reasons I decline the invitation to substitute this court's
decision
for the Minister's, and would rather remit the matter for
reconsideration by the Minister in the light of what is discussed in
the judgment.
[39]
To sum up. The Minister did not properly exercise her decision
properly in considering the applicants' exemption for permanent
residence, by constricting herself to only the false information
furnished during the application for late registration of birth.
The
applicants have not made out a case for this court to substitute its
own decision for that of the Minister. The matter should
be remitted
to the Minister.
[40]
There remains the issue of costs. To the extent the applicants have
obtained the relief for reconsideration, they have been
successful,
and are entitled to their costs.
[41]
These are the reasons for the order referred to in paragraph 1 above,
which, for completeness' sake, is repeated below:
1.
The respondent's decision on 8 November 2013 in terms of which the
first and second application for exemption
in terms of section 31(2)
(b) and/or (c) of the
Immigration Act 13 of 2002
is reviewed and set
aside;
2.
The matter is remitted to the respondent to reconsider the
application in the light of this judgment;
3.
The respondent is ordered to pay the costs of the application.
__________________________
T.M.
Makgoka
Judge
of the High Court
Appearances
For
the Applicants: Adv.
H.H. Cowley
Instructed
by: Mc
Menamin, Van Huyssteen & Bates Inc. Pretoria
For
the Respondent:
Adv. W Mkhari SC Adv. M.S Masemene
Instructed
by:
State Attorney, Pretoria
[1]
As
the
first appl
icant and
his family also use the surname of
Tima, the
same
as
Ms Zanele
Tima's, I shall refer to
her by
her
first
name, in
order
to
avoid
any
confusion,
and without meaning any
disrespect
to
her.
[2]
2006 (3) SA 47
(SCA) paras
1
6
and
1
8.
[3]
A
new
male
Minister
had
since
been
appointed
since
the
decision
was
taken
by
the
former
female
Minister.
[4]
2005 (4) SA 67
SCA para 28.
[5]
Ngqukumba
v
Minister
of
Safety
and
Security
and
Others
2013
(2) SACR
381
(SCA) para
16.
[6]
See para
12 of the
founding affidavit.
[7]
See paras
3.2 - 9.2
of Lamola's confirmatory
affidavit.