Mahinga v Minister of Home Affairs and Another (1027/2020) [2021] ZASCA 179 (17 December 2021)

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[2021] ZASCA 179
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Mahinga v Minister of Home Affairs and Another (1027/2020) [2021] ZASCA 179 (17 December 2021)

THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 1027/2020
In
the matter between:
MBEMBA
PIERRE
MAHINGA
Appellant
and
MINISTER
OF HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL
HOME AFFAIRS
Second Respondent
Neutral
citation:
Mahinga
v Minister of Home Affairs and Another
(Case
no 1027/2020)
[2021] ZASCA 179
(17 December 2021)
Coram:
ZONDI, GORVEN and HUGHES JJA and MEYER and MOLEFE
AJJA
Heard
:
25 November 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email.
It has been published on
the Supreme Court of Appeal website and released to SAFLII. The date
and time for hand-down is deemed to
be 10h00 on 17 December 2021.
Summary:
Citizenship – whether the Minister of
Home Affairs’ decision taken in terms of
s 8(1)
of the
South
African Citizenship Act 88 of 1995
to deprive the appellant of his
citizenship was reasonable and rational – certificate of
naturalisation was fraudulently obtained
on basis of marriage that
was not bona fide – concealment of material facts.
ORDER
On appeal from
:
Gauteng Division of the High Court, Pretoria (Phahlane AJ and Maumela
and Makhubele JJ sitting as court of appeal):
Appeal is dismissed
with costs including those of two counsel.
JUDGMENT
Zondi JA (Gorven and Hughes
JJA and Meyer and Molefe AJJA concurring)
[1]
This is an appeal against the judgment and order of the full court of
the Gauteng Division
of the High Court, Pretoria (Phahlane AJ,
Maumela and Makhubele JJ concurring) in terms of which it upheld the
appeal by the respondents,
the Minister of Home Affairs (the
Minister) and the Director-General Home Affairs (the
Director-General) against the judgment of
the high court. In that
judgment the high court reviewed and set aside the Minister’s
decision to revoke the appellant’s citizenship
in terms of s 8
of the South African Citizenship Act 88 of 1995 (the Citizenship Act)
which allows the Minister to deprive any
South African citizen by
naturalisation of his or her South African citizenship in
certain circumstances. The appeal is with
the special leave of this
Court.
[2]
On 10 June 2016 the Minister revoked the appellant’s South African
citizenship and
simultaneously terminated his employment with the
Department of Home Affairs (the Department). The appellant approached
the high
court to review and set aside both decisions. The high court
reviewed and set aside the decision to deprive the appellant of his
South African citizenship. It did not review and set aside the
decision to terminate the appellant’s employment. The appellant
did
not challenge the high court’s failure to make an order regarding
the termination of his employment and similarly it was not
an issue
before the full court. The reasonableness and rationality of the
Minister’s decision to terminate the appellant’s employment
is,
accordingly, not before us and that much was conceded by the
appellant’s counsel at the hearing of this appeal.
[3]
At the heart of this dispute, is the appellant’s complaint that the
Minister’s decisions
to deprive him of his South African
citizenship was unreasonable and irrational. He contended that the
Minister’s decision to deprive
him of his South African citizenship
did not comply with s 8(1) of the Citizenship Act. Section 8(1) of
the Citizenship Act deals
with deprivation of citizenship. It
provides as follows:
‘
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.’
[4]
The Citizenship Act expressly allows the Minister under specific
circumstances contemplated
in s 8(1) to deprive a South African
citizen of his or her citizenship. Where such power is exercised, it
must be done in a manner
that is consistent with s 36 of the
Constitution as it limits a citizen’s right to citizenship under s
20.
[1]
Section 20
of the Constitution is in line with Article 15(2) of the Universal
Declaration of Human Rights, which declares that
‘[n]o one shall be
arbitrarily deprived of his [or her] nationality . . .’.
[5]
To address the issues raised in this appeal, it is necessary to set
out the circumstances
in which the appellant acquired South African
citizenship and how he became employed by the Department.
[6]
The appellant was born in Kinshasha, the Democratic Republic of Congo
(DRC) on 7 February
1969. There is a dispute as to when and how he
arrived in South Africa and what he did, once he was in South Africa.
But it is common
cause that he arrived in South Africa in early 1996.
He applied for and obtained a temporary permit in terms of s 41(1) of
the then
Aliens Control Act 96 of 1991, which allowed him to reside
in South Africa for the purpose of ‘asylum seeker’. This permit
was
subject to renewal every three months from the date of its issue.
[7]
On 5 October 1999, the appellant, while in South Africa, married a
South African,
Ms Jacqueline Mfuku. On the basis of his marriage
to Ms Mfuku on 10 December 1999, he withdrew his asylum
application, and then
on 23 August 2000, applied for a permanent
residence permit on the basis of the marriage. This was granted on 14
June 2001. In July
2003, he applied for naturalisation on the basis
of his marriage to a South African. That application was granted on 1
October 2003.
At that stage, however, there were already problems in
the marriage. Ms Mfuku was allegedly seeing another man by the name
of Orji.
A child was born from this relationship on 15 October
2003, some four months after his application for naturalisation. He
renounced
his Congolese citizenship in 2015.
[8]
After obtaining the permanent residence permit the appellant, in June
2004, was appointed
as an administrative clerk at the Refugee
Reception Centre in Pretoria. He was later promoted to the post of
Assistant Director on
2 February 2006 and confirmed in the Public
Service on 3 April 2007. When he applied for employment at the
Department, the appellant
submitted his curriculum vitae (CV) as part
of his application. Under work experience on his CV, the appellant
stated, among other
things, that he was an employee of the Embassy of
the Democratic Republic of Congo in Pretoria as an administrative
officer, for
a two-year period from July 1998 to August 2000, and
that he left the Embassy’s employ because he was retrenched.
[9]
As a senior administrative officer, his responsibilities included:
managing the overall
administrative functions; co-ordinating support
services and supervising personnel; drafting correspondence and
documents; producing
synthesis on South African social, economic
and political issues and their impact on the SADC region; monitoring
local media,
writing press releases and managing information,
liaising with the media embassies and the Congolese community;
handling queries
and ensuring that all visitors are alluded to and
given the necessary courtesy; making travel arrangements,
facilitating VIP’s
arrival and departures; providing support to the
consular sections in the assessment of visa applications and
representing the Head of
the Mission (Chargé d’ Affaires) in
the SADC Head of Mission monthly meetings.
[10]     The
manner in which the appellant acquired South African citizenship and
his employment by the Department
had been under investigation by the
Department at least since 2007, following a complaint by an anonymous
member of the public addressed
to the Department in a letter dated 17
September 2007. He was asked to respond to the allegations in the
letter, which he did in
his undated response. He was not told of the
outcome of the investigations and the issue appeared to have died.
[11]     Some
four years later, in or about October 2011, the appellant was
approached by a certain Mr Joas Phala,
Assistant Director: Physical
Security of the Department. Mr Phala had asked him to provide certain
personal information, which he
alleged was for vetting purposes. The
appellant refused to co-operate, unless he received a written
authorisation for the requested
information. He did not receive the
written authorisation.
[12]     Six
years later and on 13 September 2013, the appellant received a letter
from the Department, written
by M E Malatsi CD: Investigations and
ADDG: Counter Corruption and Security Services. The letter alleged
that, upon a perusal of
the Movement Control System (MCS), the
Department picked up a number of discrepancies in his application for
citizenship, such as
when and how he entered the Republic of South
Africa (RSA), his application for asylum and its subsequent
cancellation, the legitimacy
of his marriage with Ms Mfuku and false
registration of several children on his personal and salary system
(Persal).
[13]     The
letter concluded that it was evident from the MCS and the appellant’s
Persal, that he was ‘an
illegal foreigner, whose only two options
to remain in the RSA, as such, was to apply for asylum or to go into
a marriage of convenience’,
his application was founded on
misrepresentations, and that the spouse permit in support of his
citizenship application, was false.
[14]     He
responded to these allegations by a letter dated 27 September 2013.
In short, he denied all allegations
of impropriety levelled against
him. In para 55 of the letter, the appellant stated:
‘
.
. .
55.1.
I have never been an illegal foreigner in South Africa.
55.2.
My asylum application was based on true-life persecution experiences.
My asylum claim was appropriately lodged
and duly registered in 1996
first. DHA put me through a second re-registration process in 1998.
55.3.
The accompanied spouse permit was legitimate. My spousal relationship
was based on true love, good faith and
genuine spousal relationship
reinforced by shared dream, shared family life and faithfulness and
meant to last until death do us
a part.
55.4.
Only [Department] with the help of its information and records
management systems could shed light on how
people that I never
officially declared as being my children or being connected to me
ended up being linked to me. This is a serious
distortion of facts
and misrepresentation of events that could tear family apart, put
people’s lives in danger and jeopardize children’s
future if one
does not know the tangible truth.
55.5.
I have never obtained my temporary and permanent residence permits as
well as my naturalisation by misrepresentation.
I have never
simultaneously held two (2) permits under different Acts administered
by [Department]; though, legally permitted.
55.6.
I have appropriately complied with processes and key relevant laws
administered by [Department] in terms of
registration and
documentation. I showed good cause in my 17 years of residency in
RSA. As far as the enabling provisions are concerned,
I
am and remain bylaw a South African Citizen.
’
[15]     On
15 April 2016, the Director-General issued the appellant with a
written notice of his intention to
deprive him of his South African
citizenship. The notice invited the appellant to make representations
to the Director-General within
14 days from the receipt of the
notice. The Director-General raised a number of concerns about the
manner in which the appellant
acquired South African citizenship. The
notice to deprive the appellant of his South African citizenship was
based on four grounds:
‘
42.1
Facilitating your entry and residence with a false permit obtained by
misrepresentation, you are guilty of
the contravention of
section
49(14)
of the
Immigration Act, 13 of 2002
.
The
offence carries a maximum penalty of 4 years or R80 000-00.
42.2
Fraudulently registering children on the PRS, you are guilty of
section 31(1)(b)
of the
Births and Deaths Registration Act, 51 of
1992
. The offence carries a maximum penalty of 5 years or
R100 000-00.
42.3
Obtaining citizenship by fraud you are guilty of the contravention of
section 18
of the
South African Citizenship Act, 88 of 1995
. The
offence carries a maximum penalty of 84 years or R160 000-00.
42.4
Applying for asylum fraudulently, you are guilty of the contravention
of
section 37(a)
of the
Refugees Act, 130 of 1998
.
The
offence carries a maximum penalty of 4 years or R80 000-00.’
[16]     By
letter dated 12 May 2016, the appellant, through his attorneys,
responded to the Director-General’s
letter of 15 April 2016. The
letter stated:
‘
2.
It is our instruction that there was a complaint lodged on 17
September 2007 (Placement
of Foreign People in the sensitive unit of
the Department) against our client. The complaint in question was
received on 21 November
2007 by our client and to which he responded.
3.
On 13 September 2013 our client was re-investigated (Allegations of
Impropriety
Regarding the Status of Mr. Mbemba Pierre Mahinga) and he
further responded to the investigation on 27 September 2013 directing
same
to the Acting Director-General: Counter Corruption &
Security Services.
4.
Our client was informed on the 20 October 2013 that the matter had
been finalized
by the Acting Director-General: Counter Corruption &
Security Services. We kindly request the outcome report of the matter
as
it has not been provided to date.
5.
Our client has answered to some of the questions you posed to him. To
that effect,
we will deal with facts that are both relevant and
rational to our client.
6.
It is further our instruction that our client arrived in RSA on 17
February 1996
and immediately applied for an asylum. Kindly provide
us with the Asylum Application that our client made immediately in
1996 when
he arrived. We would like to bring to your attention that
our client did not apply for an asylum on 26 November 1998 as
alleged,
this seems to us, to be a re-capture of our client’s
details on the system. Further, we would like to know how authentic
is Annexure
A.
7.
According to our client, he was issued with a
Section 41
permit in
terms of Aliens Control Act No. 96 of 1991, which allowed him to
carry out employment in the RSA.
8.
It is further our instruction and understanding that the then
Standing Committee
which dealt with refugees, would have reviewed our
client’s Asylum Application with regard to working in embassy
(1999), of which
it did not.
9.
Kindly furnish us with the decision of the sub-committee of the
Standing Committee
with regard to our client working at the DRC
embassy.
10.
Further, we would like to refer you to the system records, as our
client’s child was registered
on time as per the birth certificate.
11.
We noted that you have inserted the names of Philip Mahlangu’s
children on our client’s
file. Kindly explain how Philip Mahlangu’s
children are connected to our client.
12.
Accordingly, if our client had committed a criminal act, the
Department would have laid a
criminal charge against him however it
has failed to do so since 2007.
13.
According to our client, there is no misrepresentation that was
committed when he applied
for naturalisation. On that note, we
request you to further furnish us with the Application of
naturalisation of our client.
14.
Failure to provide us with all the above requested information within
14 days after receipt
of this letter, legal proceedings will be
instituted.
15.
It is further our instruction that the notice of intention to deprive
our client of citizenship
comes to light due to a complaint lodged
with the Public Service Commission by our client.
We
note that our client has never been illegal in the country.
16.
Therefore, we kindly request the Department to desist from
victimizing and intimidating our
client. We wonder whether other
foreign nationals who are employed in the Department, are subjected
to the same harassment of investigations.
17.
Kindly note that in the event that the Department decide to revoke
our client’s citizenship
we will approach the court as we have
evidence that you have a witch hunt against our client and request
punitive costs against whoever
would have taken such a decision.’
[17]     Not
satisfied with the appellant’s response, the Minister, on 10 June
2016, notified the appellant
that he was satisfied that the appellant
had contravened s 8(1)
(a)
and
(b)
of the Citizenship
Act ‘in that [he] acquired South African citizenship through fraud,
false representation and or concealment of
a material fact’. In
consequence, the Minister decided to revoke the appellant’s South
African citizenship and simultaneously
terminated the appellant’s
employment with the Department.
[18]
Aggrieved by the Minister’s decisions, the appellant brought an
urgent application in the high court,
in which he sought in Part A
,
an interim relief interdicting the Minister from revoking his
citizenship pending the finalisation of the review.
[19]     In
Part B of his application, he sought an order that, first, the
decision of the Minister to revoke
his citizenship be reviewed and
set aside; second, the decision of the Minister to terminate his
employment with the Department be
declared unlawful; and finally,
that he be paid compensation.
[20]     The
review was sought under s 6 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), alternatively,
under the principle of
legality. The appellant advanced various grounds on which he impugned
the Minister’s two decisions. As already
stated, the high court
reviewed and set aside the decision to deprive the appellant of his
South African citizenship on the
basis that it was based on
unreliable and insufficient evidence. But it did not review and set
aside the decision to terminate his
employment with the Department,
neither did it order the payment of compensation sought by the
appellant.
[21]     It
reasoned as follows at para 30 of the judgment:
‘
It
is clear that the Minister based his decision to revoke the
Applicant’s citizenship on facts that [were] never verified. The
spousal relationship between the Applicant and Ms Mfuku was never
investigated and the conclusion drawn by the Minister that the
marriage was not
bona
fide
based
purely on the relationship the Applicant had with Ms Tsetse is not a
rational conclusion under the circumstances. It was never
alleged nor
[proved] by DHA that the Applicant and Ms Mfuku, did not cohabit as
required in terms of the Regulations defining a
bona
fide
spousal
relationship. The Minister further relies on the fact that during the
duration of the marriage between the Applicant and Ms
Mfuku, both of
them had children with persons outside the marriage, however the
Applicant was married to Ms Mfuku for almost 4 years
before his
application for naturalisation on grounds of marriage was granted.
The Applicant only met Ms Tsetse in 2005 and the Applicant’s
then
wife, Ms Mfuku gave birth to another man’s child only in 2003 more
than three years after the Applicant married Ms Mfuku.’
[22]     It
accordingly concluded at para 33 that:
‘
The
Minister’s decision and the reasons therefore based on the
investigation by DCCS, in my view is not sufficient to justify a
decision to revoke the Applicant’s citizenship. The information
which forms the basis of the Minister’s decision has not been
placed before this Court, with the untenable explanation that the
documents are missing and / or destroyed without any explanation.
There is no plausible explanation that I can rely on to justify the
revocation of the Applicant’s citizenship and subsequent
termination
of employment. The
bona
fides
of
the Respondents in taking this decision is clouded with suspicion and
improbable.’
[23]     On
appeal the full court upheld the Minister’s appeal. The full court
rejected the appellant’s contention
that the Minister lacked
authority, in the absence of a court order to revoke the appellant’s
citizenship and that the Minister’s
decision breached the
appellant’s constitutionally protected right to citizenship. It
held that the word ‘order’ appearing
in s 8(1) of the Act does
not mean a ‘court order,’ which means that the Minister may make
a ministerial determination to deprive
an individual of his or her
citizenship. It held further that the Act did not place a time
restriction during which the Minister
may invoke his powers under s
8. The Minister, the full court reasoned, has a discretion to make a
decision ‘in the light of the
information at his disposal’.
Additionally, the full court held that to the extent that
there were serious factual disputes between the parties, the high
court
should have, in accordance with the principles as enunciated in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
2 All SA 366 (A)
[1984] ZASCA 51
; ;
1984 (3) SA 623
(A), resolved them in the
Minister’s favour, as the appellant had not sought the disputed
issues to be referred for oral evidence.
[24]     The
full court accepted the Minister’s version that the marriage
between the appellant and Ms Mfuku
was a marriage of convenience and
that he fraudulently acquired the South African citizenship.
[25]     In
his grounds of appeal the appellant advances the following arguments.
He argues, first, that the full
court failed to appreciate that the
jurisdictional requirements of s 8(1)
(a)
and
(b)
of the
Citizenship Act were not established before the Minister terminated
his citizenship. In particular, he contends that the court
could not
determine the matter in the absence of the records relating to his
asylum file held with the Department. Secondly, he argues
that the
Minister was not empowered to terminate his citizenship ‘on the
trite principle of legality when the previous Minister’
had on 1
October 2003, after following due process and the law, granted him
citizenship in terms of the Citizenship Act. The basis
for this
contention is that s 8(1) of the Citizenship Act requires the
revocation to be authorised by a court and the Minister did
not
obtain a court order authorising him to revoke the appellant’s
citizenship. Thirdly, the appellant criticises the full court
for
having mechanically accepted Mr. Vorster’s version that his
marriage with his estranged wife, Ms Mfuku, was a marriage of
convenience.
The fourth ground advanced by the appellant is that the
full court misapplied the
Plascon-Evans
rule by finding that
the Minister had successfully raised a dispute of fact. Finally, it
is argued by the appellant that the full
court misdirected itself by
finding that he had failed to respond to the revocation notice, when
he, in fact, had comprehensively
responded to the allegations in
November 2007, September 2013, 12 May 2016 and 14 June 2016.
[26]
During argument before us, counsel for the appellant abandoned the
second ground of appeal that the Minister
had no power to revoke the
appellant’s citizenship in the absence of a court order, reviewing
and setting aside the previous decision
of 3 October 2003 to
grant him citizenship. That contention had two legs. The first leg
was that when the Minister granted the
appellant citizenship on 3
October 2003, he became
functus
officio
, and could not
subsequently revoke that decision without first obtaining a court
order. The second leg, which was based on the appellant’s
interpretation of the words ‘by order’ appearing in s 8, was that
s 8 requires the Minister to revoke citizenship by court order.
[27]
The appellant’s abandonment of the second point was correct. It is
apparent from the reading of s 8
based on its text, factual context
and purpose
[2]
that it
expressly confers on the Minister the power under specific
circumstances contemplated in that section to deprive a South African
citizen of his or her citizenship. The fact that the Minister may
have previously granted citizenship to the appellant, does not
render
him
functus
officio
.
[3]
The
Citizenship Act allows him to reverse his own decision without
obtaining a court order. A citizen aggrieved by the Minister’s
revocation decision is not without a remedy. He or she may approach
the high court, as the appellant has done in his case, for an
order
to review the Minister’s decision. The interpretation of s 8(1)
contended for by the appellant would render s 25 of the Citizenship
Act – providing for the review of the Minister’s decision –
nugatory.
[28]
As regards the first ground of appeal, anchored on s 3(1)
(b)
of
PAJA, it was submitted by counsel for the appellant that the full
court erred in finding that the Minister had satisfied the
requirements
for the revocation of the citizenship under s 8(1)
of the Citizenship Act. He argued that the evidence
[4]
relied upon by
the Minister to exercise his powers under s 8(1) was hearsay,
suffered from internal contradictions and was unreliable.
It was,
accordingly, submitted by the appellant’s counsel that the full
court misapplied the
Plascon-Evans
rule
by finding that the Minister had successfully raised a dispute of
fact.
[29]     I
reject the appellant’s contention. In the answering affidavit
deposed to by the Director-General
on behalf of the Department, he
stated that to the extent that he dealt with matters that did not
fall within his personal knowledge,
he did so on the strength of
documents and records in the Department’s possession and
information that came about as a result of
Mr Vorster’s
investigation. In my view, the MCS records in possession of the
Department and to which the Director-General had access;
and the CV,
which the appellant submitted to the Department in support of his
application for employment, provided sufficient evidence
on which the
Minister could make a determination under s 8(1) of the Citizenship
Act. The appellant’s contention that the evidence
of the MCS
records is hearsay, should be rejected. It is real evidence and is
admissible in terms of
s 15
of the
Electronic Communications and
Transactions Act 25 of 2002
. The MCS document is a computer
generated document extracted by the Director-General from the
Department’s computers, to which
he had access.
[30]     The
entries in the MCS document contradict the appellant’s assertion
that he arrived in South Africa
on 17 February 1996 through the
border of Namibia after having fled his country of origin, because of
fear of persecution by the
regime that was in place at the time and
that he came to South Africa as an asylum seeker.
[31]     It
was not disputed by the appellant that the recordal on the MCS
document of his full names, date of
birth and occupation, is correct.
What he disputed is that he arrived in South Africa from the DRC on 5
January 1996, and entered
from Johannesburg International Airport at
18h29, with an official DRC passport, bearing passport number 504222,
that the purpose
of his visit was to work in the media industry and
that he was issued with a temporary resident permit (TRP number
HRCGZQH), which
expired on 5 February 1996.
[32]     The
appellant did not provide a substantive response to the concerns
raised by the Minister about his
alleged misrepresentation regarding
his asylum seeker status. In his response in a letter dated 27
September 2013, the appellant
stated that the Department’s
immigration and records management systems were unreliable, erratic
and untrustworthy, ‘unstable,
error-prone, mixing up users, picking
up data not entered and mixing up several data (data manipulation)
causing in the process unreliable
data’.
[33]     The
investigations that were undertaken on behalf of the Minister in 2013
and 2016 revealed certain information
about the appellant’s asylum
seeker status and about the process the appellant followed in
obtaining his citizenship. The appellant’s
claims that he came to
South Africa in order to seek asylum from persecution by his country
of origin, are unfounded. His application
for refugee status was
merely a misuse of the refugee/asylum system. The evidence reveals,
on the appellant’s version, that upon
his arrival in South Africa,
he reported at the Braamfontein Refugee Reception Office to register
as an asylum seeker. He was issued
with a temporary permit, which he
had to renew from time to time. This continues to be the case until
10 December 1999, when he withdrew
his asylum application following
his marriage with Ms Mfuku on 5 October 1999. During the same period,
the appellant says, he worked
for the DRC Embassy in Pretoria. This
is inconsistent with his claims that he fled DRC, because he felt his
life was in danger.
[34]     The
appellant’s response to the concerns raised by the Minister about
his status as an asylum seeker,
is unsatisfactory and fails to
address the pertinent questions. In his response dated 27 September
2013, the appellant stated the
following in para 48 of the letter:
‘
DRC
Embassy in Pretoria – which operates in South Africa was neither
home (DRC) nor within the DRC territory (not operating under
DRC
jurisdiction). The Embassy during 1998
-2000
abided by South African rules. The Embassy is outside the territorial
jurisdiction of DRC. As such, international protection
still applied
(come into play). Administratively assisting the Chargé d’
Affaires on private capacity as a consultant during a
turbulent and
chaotic period where
there
was no constitution in DRC, no rule of law and no governance
does
not legally or conventionally equate to re-availment. During that
period, the need for protection, the circumstances and conditions
in
DRC between June 1998 and August 2000 further made me a
refugee
“sur place”.
’
[35]     The
analysis of the evidence makes it clear that the appellant’s
application for asylum was not bona
fide. The CV claimed employment
in an official capacity. That included assisting in visa
applications. It also claimed retrenchment.
This is hardly private
employment as a consultant. The appellant’s explanation deals with
none of this in detail but airily dismisses
the legitimate concern
expressed in the letter of a material misrepresentation. The
appellant misrepresented his status and that
to the extent that there
was a factual dispute regarding this fact, the full court correctly
accepted the Minister’s version applying
the
Plascon-Evans
principle.
[36]
Additionally, another piece of evidence that was relied upon by the
Minister to revoke the appellant’s
citizenship related to the
manner in which the appellant acquired citizenship by naturalisation.
On 1 July 2003 the appellant, on
the basis of his marriage to Ms
Mfuku, applied for permanent residence. This application was
supported by Ms Mfuku. But at that stage
Ms Mfuku was already in a
relationship with another man, known as Orji and two children were
born from this relationship, the first
of whom was born on 15 October
2003. The second one was born on 12 November 2005.
[37]     The
appellant does not dispute that, during the subsistence of the
marriage, Ms Mfuku had a relationship
with Orji and that the two
children were born from this relationship. The appellant in fact
admits that their ‘relationship had
soured during or around 2003
and [they] had then decided to stay apart of each other’. He says
he met his current partner, Ms Tsotetsi
in July 2005. Having regard
to these facts, the full court’s acceptance of the Minister’s
version that the appellant’s marriage
to Ms Mfuku was a marriage of
convenience, cannot be faulted. The conclusion is ineluctable that
when the appellant applied for naturalisation
in July 2003, there was
no longer a good faith marriage between him and Ms Mfuku. The
permanent residence permit that was issued
to the appellant, was thus
issued through misrepresentation that they were still staying
together when in fact, they were separated.
There is no evidence from
Ms Mfuku to corroborate the appellant’s version that a good
faith marriage existed when he applied
for a permanent residence
permit. In fact, it is the Minister’s version that during the
investigation Ms Mfuku was approached for
a statement. She declined
to co-operate, stating that she had been approached and warned by the
appellant against co-operating with
the officials of the Department.
[38]     In
the application form for permanent residence permit, the appellant
stated that he had left his immediate
family members in DRC,
including his parents, siblings and his daughter. The extract from
the Department’s Traveller’s Record
System, on which the Minister
also relied, revealed that the appellant travelled by air from
Johannesburg to DRC on 13 June 2012
and returned on 22 June 2012.
Although the appellant denies this fact in his replying affidavit,
he, however, confirms it in para
49 of his letter addressed to Mr
Malatsi on 27 September 2013. The denial that he visited DRC in June
2012, is therefore untruthful.
It is apparent from this disclosure
that there was no basis for the appellant to have had a well-founded
fear of persecution by the
DRC government and that his claim that he
had come to South Africa as a refugee, is unfounded.
[39]
The appellant’s contention that, in the absence of the records
relating to his application for a temporary
permit, which had gone
missing, the full court could not establish whether the requirements
in
s 8(1)
had been met, is rejected. It is correct that it was held
in
Democratic
Alliance v Acting National Director Public Prosecutions
[5]
that the
production of the administrative record is inherently necessary for a
court to undertake the task of determining the regularity
of the
proceedings sought to be impugned and that without the record, a
court could not perform its constitutionally entrenched review
function.
[40]
However, in the present case the absence of the appellant’s asylum
file is not fatal to the Minister’s
case. The Minister did not have
to rely solely on the asylum file to establish a case based on the
provisions of s 8(1) of the Citizenship
Act. Apart from the asylum
file other reliable evidence in the form of MCS documents was
available. The evidence on which the Minister
relied, was not
woefully inadequate to arrive at the decision.
[6]
The material
at the disposal of the Minister was sufficient to enable him to reach
a conclusion that the appellant had obtained the
certificate of
naturalisation by means of false representation or the concealment of
a material fact and in conflict with the Citizenship
Act. The
Minister’s decision to deprive the appellant of his South African
citizenship is therefore, not unreasonable or irrational.
There is a
rational objective basis justifying the connection made by the
Minister between the evidence before him and the decision
he made.
[7]
[41]     The
appeal is dismissed with costs including those of two counsel.
_
D H ZONDI
JUDGE OF
APPEAL
APPEARANCES
For the
appellant:
L M G Mfazi (with T Tshabalala and S Msimanga)
Instructed
by:

Z & Z Ngogodo Inc,
Waterfall Park, Midrand
N.W. Phalatsi
& Partners, Bloemfontein
For the first and second
respondents:      N A Cassim SC (with E D
Richards)
Instructed
by:

The State Attorney,
Pretoria
The State
Attorney, Bloemfontein
[1]
Section 20 of
the Constitution provides that ‘[n]o citizen may be deprived of
citizenship’.
[2]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA);
2012 (4) SA 593
(SCA) para 18.
[3]
Thompson,
t/a Maharaj and Sons v Chief Constable, Durban
[1965]
4 All SA 313 (D); 1965 (4) SA 662 (D).
[4]
MCS records
and Mr Vorster’s affidavit.
[5]
Democratic
Alliance v Acting National Director Public Prosecutions
[2012] ZASCA
15
;
[2012]
2 All SA 345
(SCA);
2012 (6) BCLR 613
(SCA);
2012 (3) SA 486
(SCA)
para 33.
[6]
Owners of
MV Banglar Mook v Transnet
[2012]
ZASCA 57
;
[2012]
3 All SA 632
;
2012 (4) SA 300
(SCA) para 61.
[7]
Trinity
Broadcasting, Ciskei v Independent Communications Authority of South
Africa
[2003]
4 All SA 589
(SCA) para 21.