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[2013] ZAGPPHC 158
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Nhlabathi v Department of Home Affairs and Another (58855/2012) [2013] ZAGPPHC 158 (12 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
Case
number: 58855/2012
DATE:12/06/2013
In
the matter between : -
BUSANGANI
PETROS SIBUSISO
NHLABATHl
….............................................
Applicant
and
DEPARTMENT
OF HOME
AFFAIRS
.......................................................
First
Respondent
MINISTER
OF HOME
AFFAIRS
...........................................................
Second
Respondent
JUDGEMENT
[1]
The applicant claims the following relief against the respondent:
"1.
That the first and second respondent be ordered to restore the
applicant's status as a South African citizen;
2.
That the first and second respondent be ordered to issue the
applicant with a new identity book;
3.
That the first and second respondent be ordered to issue the
applicant with a new identity book;(sic!)
4.
That the first and second respondent pay the applicant's costs of
this application;
5.
Further and/or alternative relief."
FACTS
AND APPLICABLE LEGISLATION
[2]
It is clear from the affidavits filed herein that the applicant was
born in South Africa and that his mother was at the time,
a South
African citizen.
[3]
In terms of the provisions of section 2 (1)(a) of the South African
Citizenship Act, 88 of 1995 ("the Act"), the applicant
was,
in the circumstances, a South African citizen by birth.
[4]
The applicant lost his citizenship in or about 1983, in terms of
section 6(1) of the Act, when he became a citizen of Swaziland.
His
status is confirmed on a "Fingerprint Form: Foreign Black Males"
dated 15 September 1989, attached to the respondent’s
answering
affidavit.
[5]
The applicant explains that employment agencies in South Africa
during the 1980's, preferred labourers from neighbouring countries,
which resulted in his change of status.
[6]
The applicant returned to South Africa in or about 1984 and has been
living in South Africa ever since.
[7]
In the premises, the applicant may, in terms of the provisions of
section 13 of the Act, apply to the second respondent for
the
resumption of his former South African citizenship.
CONCLUSION
[8]
The application is therefore premature.
COSTS
[9]
Ordinarily, a successful party will be awarded the costs of the
application. A court, however, has a discretion to make any
cost
order it deems fit. The conduct of the parties prior to and during
the litigation are factors to be taken into account in
considering an
appropriate cost order.
[10]
The applicant's journey to rectify his status started during May 2010
at the Home Affairs offices in Carltonvilie. I pause
to mention that
the first respondent did not see it fit to advise the applicant of
the change in his status.
[11]
The applicant, being unaware of the change in his status, therefore,
proceeded to the Carltonvilie offices to obtain a new
passport. After
scanning his thumb, he was told that, according to the system, he is
an illegal immigrant.
[12]
No one at the Carltonvilie offices could provide any reason for the
change in the applicant's status and he was referred to
the offices
in Piet Retief, where he obtained his first identity document.
[13]
At the Piet Retief offices, the applicant was advised of the reason
for the change in his status and was referred to the first
respondent
to reverse "the freezing" of his citizenship.
[14]
The applicant applied and was issued with a birth certificate and
armed with his birth certificate the applicant returned to
the
Carltonville offices. He was given the assurance that the officials
at Carltonville Home Affairs will look into the matter
and told to
visit the offices regularly to check his status.
[15]
Notwithstanding frequently visits to the Carltonville offices, the
applicant’s problem was not solved. The applicant
became
understandable desperate and decided to adclresed a letter to the
Director-General of the first respondent. In the letter,
dated 12
August 2010, the applicant explained his predicament and requested
urgent help from the first respondent. He did not receive
the
courtesy of a reply.
[16]
In early 2011, the applicant sent an e-mail to the offices of the
first respondent and was advised that the matter is receiving
attention. Nothing transpired.
[17]
In order to speed up the process, the applicant was given the
telephone number of a certain Mr Mkhize. Mr Mkhize promised to
report
back to the applicant. This never happened. The applicant wrote a
letter to Mr Mkhize, which, once again, went unanswered.
[18]
Some time thereafter the applicant was interrogated by officials of
the first respondent at the Carltonville offices. Subsequent
to the
interrogation, the applicant was provided with a toll free number and
told to call the number in order to solve his status
problem,
[19]
His problem was not resolved and he turned to the Wits Law Clinic for
assistance. Wits Law Clinic, once again, addressed a
letter to the
first respondent. Not surprisingly, the letter, went unanswered.
[20]
Due to the first respondent’s absolute disregard for the
applicant's predicament, this application was launched on or
about 12
October 2012.
[21]
In the application, the applicant explained that he transport people
crossboarder and without a passport he was without an
income and
could not support his family. In view of his status as an illegal
immigrant, the applicant's presence in South Africa
is precarious and
he lives with the daily threat of deportation.
[22]
The applicant's right to freedom of movement, dignity, security of
tenure and ability to earn an income is violated by the
first
respondent’s flippant disregard for his plight.
[21]
To make matters worse, the first respondent admits all these facts
without tendering any explanation, whatsoever, for its dismal
behaviour.
[23]
I am dismayed at the treatment meted out to the applicant by the
first respondent. Every person in the Republic is entitled
to be
treated with the necessary respect. Officials at the respondent are
appointed to serve the public at larcje. It should not
be necessary
for any person to approach the court, because officials do not do
their work.
[24]
Lastly, the first respondent's conduct in the present litigation left
much to desire.
[25]
Notwithstanding the applicant's baptismal certificates, his mother's
evidence under oath, the wealth of copies of identity
documents and
passports issued by the first respondent to the applicant in the
past, the first respondent maintains that the applicant
was never a
South African citizen. This averment is without any factual basis and
demonstratively wrong.
[26]
The Act is one of the pieces of legislation that prescribes the
functions of the first respondent. Yet, no one in the employment
of
the first respondent, advised the applicant of his remedies in terms
of the Act.
[27]
As a mark of my displeasure with the first respondent's conduct, I am
not granting a cost order in favour of the respondents.
ORDER:
The
application is dismissed.
N
van Nieuwenhuizen
Acting
Judge of the North Gauteng High Court, South Africa
Representation
for the Plaintiff/Respondent
Counsel:
Adv. Masimene
Instructed
by: The State Attorney Pretoria
Ground
Floor, Salu Building 316 Thabo Sehume Street
Pretoria
Representation
for the Defendant/ Applicant
Counsel:
Adv. H. R. Liphosa
Instructed
by: Kekana Hlatshwayo Radebe Inc.
C/0
Noko Attorneys 779 Set)German Street Arcadia Pretoria