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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 59209/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 07 February 2025
Signature:
In the matter between:
K[...] K[...] S[...] N.O. Applicant
And
THE DIRECTOR – GEN ERAL OF HOME AFFAIRS Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This is an opposed application to hold the respondent, the Director -General of
Home Affairs (“the DG”) , guilty of contempt of a Court Order which requires him
to issue to the applicant’s minor daughter H[...] S[...] , who was born on 16
December 2019 in Dubai, a South African passport and an unabridged birth
certificate .
[2] The DG failed to do so as required in terms of the Court Order and the
applicant seeks his incarceration for having failed to do so . The applicant is the
son of Ajay Gupta , one of the three Gupta brothers well -known in the country in
recent times.
[3] It is commo n cause that the applicant currently resides in Dubai in the United
Arab Emirates (UAE ) from where he endeavoured to apply for the two
documents at issue in the application without success. The application was
made at the South African Consulate General’s office in Dubai.
[4] When his numerous follow -ups with the consular office bore no results, he
sought a court order which was granted on 3 October 2022. It i s the failure to
comply with this order that is at the centre of this application.
[5] Mr Hellens SC submitted that the Court Order has been ignored and that the
respondent only filed his so -called rescission application on 3 July 202 4.
[6] Mr Cassim SC submitted on behalf of the respondents that this court should
determine whether the respondent has rebutted the requirement of mala fides
or not. He submitted that:
6.1 The DG had explained the reasons why the matter had
remained unattended, having fallen through administrative
“cracks ” due to challenges of staff shortages at the
Department’s legal Services.
6.2 The applicant’s citizenship may be a nullity due to concerns
raised against the Guptas’ acquisition of same. The DG himself
states in his affidavit that “The issue relating to the Gupta
family is governed by Section 5(9) of the South African
Citizenship Act. The allegations against the former Minister
Malusi Gigaba in granting the Gupta family citizenship is that
there were no exceptional circumstance upon which he could
grant a certificate of naturalization in terms of Section 5(9)(a) of
the Act. Once this matter is settled and the above honourable
court is of the view that there were no exceptional
circumstances. It follows therefore that the citizenship through
naturalization to the Gupta family was granted unlawfully and
will have to be set aside. ”1
[7] An applicant in civil contempt proceedings who alleges that another (the
contemnor) is gu ilty of acting in cont empt of a court order, must establish –
(a) That the order alleged to have been breached was granted against the
contemnor ;
(b) that the order was served upon the contemnor or that the contemnor
had knowledge of it ; and
(c) that the contemnor did not comply with the order. Upon proof of those
facts there is a presumption or inference of wilfulness and mala fides ,
and the contemnor has an onus to rebut that inference on a balance of
probabilities. This may be done, for example, by establishing that the
court order was not deliberately or intentionally disobeyed. Before
imposing a criminal sanction, the guilt of the contemnor has to be
established beyond a reasonable doubt, for other coercive remedies to
be applied, the contempt must be established on a balance of
probabilities.2
[8] Mr Cassim SC further submitted that the respondent has established on a
balance of probabilities that his conduct was n either wilful nor mala fide in not
complying with the Court Order. A rescission application has been filed. An
explanation has been proffered for the circumstances in which the default order
was obtained (paras 15 — 29). The merits for rescission are strong (para 36,
1 Para [47] of founding affidavit filed as part of the rescission application.
2 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
44, 45 and 47). By all accounts, applicant knew by April 2024 of the rescission
application.
[9] The submission that the failure to issue the minor child with a South African
passport and a birth certificate renders her to be stateless finds no traction
when regard is had to the fact that she was born in and continues to live under
the protection of the Government of the UAE and needs no immediate relief.
Further more, her grandfather, Ajay Gupta and her father and the Gupta family
at large are persona e non grata e in the Republic of South Africa.
[10] Public policy considerations , it was submitted, lean in favour of the issue of
citizenship being properly ventilated. If in fact the grandfather and the father of
the minor child obtained their citizenship unlawfully it would follow that the
minor child would not be entitled to citizenship of the Republic of South Africa.
[11] In Atul Kumar Gupta, v Director -General , the Department of Home Affairs and
Another case no. 431/21 and on 20 January 2023 this Court (Kumalo J
presiding) dismissed the application of Atul Gupta to review the decision of the
respondent to reject Gupta's application for a passport and concluded that Atul
Gupta is a fugitive from justice and had no locus standi to approach this Court
for the relief he sought.
[12] The explanation given by the respondent and the factual allegations around the
citizenship of the applicant , the Gupta family ’s status as fugitives from justice in
the Republic of South Africa and the fact that an application for the rescission
of the Court Order which is subject to this application has been filed , are
persuasive factors supporting the absence of wilfulness and mala fides on the
part of the respondent.
[13] In the result, the application for contempt of the court order cannot succeed.
The following order is made :
The application is dismissed with costs.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 30/07/2024
Date of Judgment: 07 February 2025
On behalf of the Applicant : Mr M.R. Hellens SC
Applicant’s attorneys : Krause Inc .; Pretoria
e-mail: stiaan@krauseinc.co.za
On behalf of the Responde nt: Mr N. Cassim SC
With him: Mr S . Mpakane
Attorneys for the respondent: The State Attorney, Pretoria
Ref: 5002/2022/ Z19
e-mail: NMabhena@justice.gov.za
Delivery : This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand -down is deemed to be 07 February 2025