(1) REPORTABLE: NO
(2) OF INTEREST TO OT
(3) REVISED: NO
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DATE
In the matter between:
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
THE MINISTER OF HOME AFFAIRS
THE DIRECTOR-GENERAL: HOME AFFAIRS
and
SAKHAROV, MIKHAIL
JUDGMENT
MOKOSE J
CASE NO: 2024 - 044391
First Applicant
Second Applicant
Respondent
1
Introduction
[1] Two opposed applications are before this court - the main application for rescission of the
Court Order granted on 9 September 2024 and a counter application for contempt of the Court Order.
Brief Facts
[2] It is common cause that on or about 9 December 2013 the respondent was granted a
permanent residence permit to reside in South Africa. It is also common cause that he was married to
a South African citizen for a period in excess of 5 years. On 13 November 2023 the respondent
attended at the offices of the Department of Home Affairs to confirm the requirements for an
application for citizenship. The attendant official stated that only an application for verification of his
permanent residence permit could be submitted. On 6 June 2024, the respondent's junior counsel,
Ms Granova, was called by an official from the same department requesting a clearer copy of the
permanent residence certificate, which was duly furnished. It is common cause that the respondent's
application for citizenship was refused and that only an application for verification of the permanent
residence permit could be submitted.
(3] On or about 23 April 2024, an application to this court was sought for the review of the
decision of the department in its refusal of the respondent's application for citizenship by
naturalisation. The matter was set down and hear on the unopposed motion roll of 9 September 2024.
On order was granted by the Court on the following term s:
"1. The failure and/or refusal by the first and/or second respondent(s) to allow submission of
and/or accept an application to have the applicant's birth registered in terms of the provisions
of the Births and deaths Registration Act 51 of 1992 is reviewed and set aside;
2. The applicant is declared a citizen of the Republic of South Africa by naturalisation in terms
of the Citizenship Act 88 of 1995, as amended;
3. The first and/or second respondent(s) are ordered to take all necessary steps within 30
3. The first and/or second respondent(s) are ordered to take all necessary steps within 30
(thirty) days of the date of this Order, to:
3.1 Register the applicant's birth in terms of Section 13 of the Births and Deaths Registration
Act, as amended;
2
3.2 Issue the applicant with written recognition of his citizenship of the Republic of South Africa
by naturalization as contemplated in Section 5 of the Citizenship Act 88 of 1995, as amended;
and
3.3 Issue the applicant with an identity document as contemplated in the Identification Act 68
of 1997, as amended;
4. Should the first and/or second respondent(s) fail to timeously comply with paragraph 3
above, the applicant is granted leave to approach this Honourable Court for an order for
contempt and committal of the said respondents to goal on the same papers, supplemented
and/or amended where necessary.
5. The respondents be ordered to pay the costs of this application jointly and several, the one
paying, the other to be absolved, on Scale B party and party costs."
Issues in dispute
[4] The rescission application is opposed by the respondents. So too is the application for
contempt being opposed by the applicants. I will commence with the main application being that of
the rescission.
[S] The first issue in dispute to be determined by this court is whether the applicants have made
out a case for condonation for the later application for the rescission of the judgment. Then the court
will have to determine whether the applicants have an acceptable explanation for their default to
oppose the review application. Thirdly, the court must determine whether the applicants have a bona
fide defence to the respondent's application for review and whether they were in wilful default in
respect of the compliance with the order of 9 September 2024. The final issue is that of contempt of
the order - that will be dealt with after the main application of rescission.
Condo nation
[6) In the Notice of Motion the applicants seek an order that the late application for the rescission
of the default judgment be condoned, it having been sought over eleven months after it came to their
attention. The reason for the delay is stated as "being the gathering of information required thorough
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tracking of the history of the matter as well as past communication between the parties for the purpose
of making up a case on condonation ... "
(7] The legal test for condonation applications is well established. Holmes JA in the matter of
Melone v Santam Insurance Company Limited
1
held as follows:
" ......... the basic principle is that the Court has a discretion, to be exercised judicially upon a
consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts
usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the
importance of the case. Ordinarily, these facts are interrelated; they are not individually decisive, save
of course that if there are no prospects of success there would be no point in granting condonation.
Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and
a good explanation may help to compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend to compensate for a long delay. And the respondent's
interests in finality must not be overlooked."
(8) A condonation application is an application in which the court's indulgence is sought.
Accordingly, the deponent of the founding affidavit ought to take the court into its confidence and
provide a full explanation for the circumstances of the delay. The ultimate consideration when all
other factors have been considered is whether refusing or granting the condonation would serve the
interests of justice.2
(9] I am of the view that the applicants have failed to take this Court into their confidence. They
have failed to explain fully the reason why it took over 11 months to launch this application. The
deponent has merely informed the court of the meetings which took place to obtain instructions to
proceed with the rescission application and that consultations with counsel took place. The applicants'
application for condonation stands to be dismissed for this reason.
' 1962 (4) SA 531 (A)
2 Mankanyi v AngloGold Ashant i Limited 2011 (5) BCLR 452 (CC) at para 8
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Rescission Application
(10] In order for an applicant to be successful in its application for rescission of judgmen t based on
rule 31(2)(b) of the Uniform Rules of Court, the applicant is required to show "good cause" for the
rescission by:
(i) giving a reasonable explanation for its default in failing to attend to the filing of a
notice of intention to defend;
(ii) showing that he is bona fide in bringing the application and not made with the
intention of delaying the plaintiff's claim; and
(iii) showing that he has a bona fide defence to the respondent's claim which prima facie
has some prospect of success.
(11] Regarding the last-mentioned requirement, it is trite law that an applicant for rescission of
judgment is not required to illustrate a probability of success but rather the existence of an issue fit
for trial. 3
[12) In the founding affidavit, the applicants contend that the respondent set the matter down on
the unopposed motion roll without properly serving the application for review on the applicants in
accordance with the provisions of Section 2(2)(a) of the State Liability Act 20 of 1957. Furthermore,
the applicants contend that this same application was not served on the office of the State Attorney in
accordance with Section 2(2)(b) of the State Liability Act of 1957. It was however conceded that the
order of 9 September 2024 was served on the offices of both the State Attorney and the applicants on
16th and 20th September 2024 respectively.
(13) From the documents on hand, it is evident that the review application was served on the State
Attorney on 2 May 2024. Furthermore, on 3 May and 9 May 2024 the review application and notice
of set down were serve on the first and second applicants respectively. I am satisfied that proper
service of the application had been effected on the applicants and the matter properly enrolled. The
applicants have failed to provide an acceptable explanation why they did not oppose the application
3 Sanderson Technitool (Pty) Ltd v lntermenua (Pty) Ltd 1980 (4) SA 573 (W) at 575H to 576A
5
whilst they were aware of the date of the hearing of the matter. Accordingly, the court is unable to
come to the applicants' assistance in this regard.
[14] The second requirement is that of a bona fide defence. The applicants contend that the
respondent had failed to comply with the requirements of obtaining citizenship. In particular, the
applicants contend that the respondent had been informed that he was obliged to comply with the
department's Standard Operating Procedures and have his permanent residence permit verified.
[15] The respondent contends that he qualifies for citizenship under Sections 5(1) and 5(2 of the
Citizenship Act as he had been in possession of this permanent residence permit for a period of more
than 5 years and that he had been married to a South African citizen during that time.
[16] The Supreme Court of Appeal in the matter of Minister of Home Affairs v Jose and Another4
held that if the requirements of the Citizenship Act are complied with, the applicants have no
discretion whether to grant it or not. They must just issue it.
[17] The applicants' defence of non-compliance with the department's Standard Operating
Procedures has no merit. Accordingly, I am of the view that this is not a bona fide defence as neither
the Citizenship Act nor its regulations require the respondent to firstly apply for and obtain verification
of his permanent residence permit and to submit it as part of the application for his citizenship
application. The application stands to be dismissed on this ground too.
Application for contempt
[18) The respondent brings a counterapplication against the applicants in the- rescission
application. The respondent contends that since the applicant learnt of the order on or about 20
September 2024 and have not complied with such order, the only conclusion to be drawn is that they
are in contempt of the order of 9 September 2024 and that such non-compliance is both deliberate
• 2021 (6) SA 369 (SCA) at para 21-24
6
and ma/a fide. The respondent also seeks an order that the respondents be committed to goal for a
period of 90 days.
[19] All citizens and residents of the Republic of South Africa have a duty to respect and abide by
the laws of the country. In the matter of Secretary of the Judicial Service Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v
Zuma and Others5 it was held that 'courts unlike other arms of State ......... rely solely on the trust and
confidence of the people to carry out their constitutionally mandated function which is to uphold,
protect and apply the Jaw without fear or favour. Disregard of court orders is an attack on the very
fabric of the rule of law.'
(20] The requirements for contempt of court are trite. They are the existence of a court order; the
contemnor must have knowledge of the court order; there must be non-compliance with the court
order; and the non-compliance must have been wilful and ma/a fides. Once the first three elements
have been shown, wilfulness and ma/a fides wil l be presumed, and the evidentiary burden shifts to the
contemnor. Should the contemnor (the applicant in this matter) fail to discharge this burden, contempt
would have been established.
[21] The parties are ad idem that the order was indeed granted by this Court. The applicant admits
knowledge of the court order and that there was non-compliance of such order for the reason that
they believed that the judgment was not enforceable against the department as the respondent had
not made a proper application for naturalisation.
[22] In view of the admissions in the founding affidavit of knowledge of the order and that it was
wilfully not complied with and that there was mafa fides on the part of the first and second applicants,
I have no reason not to grant the order as sought by the respondent in the counterapplication.
[23] Accordingly, the following order is granted:
5 2021 (5) SA 327 (CC) at para 1
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1. The application for the rescission of the Order dated 9 September 2024 is dismissed;
2. The first and second applicant are found to be in contempt of the order issued by Ma homed
AJ on 9 September 2024 under case number 2024 - 044391 and are committed to goal for a
period of 90 in the event that the order is not complied with within a period of 15 days of
receipt of this order;
3. The first and second applicants are ordered to pay the costs of the rescission application as
well as the counterapplication for contempt on a scale as between attorney and client
including the costs of two counsel, jointly and severally, the one paying the other to be
absolved.
For the Applicants: Adv K Mondlane
On instructions of: The State Attorney
For the Respondent: Adv CFJ Brand SC
Adv A Granova
On instructions of:
Date of hearing:
Date of judgment :
Van Greunen and Associates Inc
16 March 2026
22 June 2026
Judge of the High Court of
South Africa Gauteng
Division, PRETORIA
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