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[2019] ZASCA 138
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Mzalisi NO and Others v E O and Another (630/2018) [2019] ZASCA 138; 2020 (3) SA 83 (SCA) (1 October 2019)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 630/2018
In
the matter between:
L MZALISI
NO FIRST
APPELLANT
DIRECTOR-GENERAL
OF DEPARTMENT
OF
HOME AFFAIRS
NO SECOND
APPELLANT
MINISTER
OF HOME AFFAIRS
NO THIRD
APPELLANT
DEPUTY
DIRECTOR-GENERAL
FOR
CIVIC SERVICES
NO FOURTH
APPELLANT
and
E
O FIRST
RESPONDENT
Z
N SECOND
RESPONDENT
Neutral
citation:
Mzalisi NO & others v O & another
(630/2018)
[2019] ZASCA 138
(01 October 2019)
Coram:
Petse DP, Tshiqi, Wallis, Mbha and Dlodlo JJA
Heard:
5 September 2019
Delivered:
01 October 2019
Summary:
Civil and customary marriages – eligibility of asylum
seekers whose status has not been determined to marry whilst lawfully
residing in South Africa – validity of departmental circular
imposing absolute ban on asylum seekers seeking to marry –
circular inconsistent with the law and invalid.
ORDER
On
appeal from
: Eastern Cape Division of the High Court, Port
Elizabeth (Jaji J sitting as court of first instance):
1.
The appeal is dismissed
with costs on the scale as between attorney
and client.
2.
The order of the court below
is amended to the following extent:
2.1
The structural interdict appended to paragraph (v) of the order is
deleted in its entirety.
2.2
Paragraph (vii) of the order is deleted in its entirety.
JUDGMENT
Petse
DP (Tshiqi, Wallis, Mbha and Dlodlo JJA concurring):
Introduction
[1]
The first
respondent, Mr E O, is a Nigerian national. He came to South Africa
in 2011 to seek sanctuary in order to escape what
he says were
increasing attacks directed at Christians by Boko Haram in his home
country. He is an asylum seeker who is entitled
to reside in South
Africa by virtue of an asylum seeker temporary permit issued in terms
of s 22(1)
[1]
of the Refugees
Act 130 of 1998 (the
Refugees Act). This
permit entitles the first
respondent to live, work and study in South Africa. His application
for asylum under
s 21
of the
Refugees Act was
refused by the Refugee
Status Determination Officer.
[2]
He appealed the rejection of his application to the Refugees Appeal
Board (RAB) in terms of
s 24A
of the
Refugees Act. The
appeal has
been pending before the RAB for some seven years.
[3]
Had the first respondent’s asylum seeker application succeeded
he would have become a refugee and lawfully entitled to reside
permanently in South Africa.
[4]
[2]
In September 2015 the first respondent married the second respondent,
Ms Z N, a South African citizen by birth, under customary
law. There
is one child G, born of this marriage on 23 June 2016. Both
respondents live in Port Elizabeth where the first respondent
is a
Pastor in the Dominion Embassy Church.
[3]
During
August 2016 the respondents went to the offices of the Department of
Home Affairs (DHA), Port Elizabeth to seek registration
of their
customary marriage under s 4 of the Recognition of Customary
Marriages Act 120 of 1998 (RCMA),
[5]
and also to contract a civil marriage under the Marriage Act 25 of
1961. There they met Mr Faltein, at the time the Acting Office
Manager. Mr Faltein told them that for this to happen two things were
required: first, their customary marriage had to be proved
and
secondly, the first respondent’s asylum seeker temporary permit
had to be verified. Proof of the existence of the customary
marriage
was duly provided by way of an affidavit from the second respondent’s
father. And, in February 2017 a new s 22 asylum
seeker permit was
made available to Mr Faltein, who confirmed that all was now in
order.
[4]
But, lo and
behold, on 14 February 2017, when the respondents returned to the
DHA, little did they know what awaited them. To their
chagrin, Mr
Faltein told them that they could neither marry nor have their
customary marriage registered because, in the interim,
the law had
changed and ‘asylum seekers [were] no longer allowed to get
married’. For this stance Mr Faltein relied
on a circular
issued on 12 September 2016 by the Deputy Director-General for Civic
Services, the fourth appellant in this case.
[6]
In particular, Mr Faltein invoked para 2.1
(b)
(iii)
(dd)
thereof.
In broad terms, the circular, amongst other things, prescribes
elaborate procedures with which marriage officers are required
to
comply before they may solemnise marriages involving refugees and
asylum seekers.
[5]
Aggrieved by this bizarre turn of events, the respondents instituted
legal proceedings in the Eastern Cape Division of the High
Court,
Port Elizabeth (the high court). In the main, they impugned the
validity and lawfulness of paragraph 2.1
(b)
(iii)
(dd)
of
the circular to the extent that it introduced an impediment to them
being married. It bears mentioning that this paragraph was
the only
material innovation introduced to Circular No. 10 of 2013, operative
from 19 December of that year, that had until then
governed
procedures relating to the solemnisation and registration of
marriages in South Africa.
[6]
Barring
costs,
[7]
the extensive
relief
[8]
sought by the
respondents as applicants in the high court was, despite opposition
by the appellants, as respondents, granted in
its entirety. The
appellants appeal against that order with the leave of the high
court.
Respondents’ cause
of action
[7]
The respondents challenged the validity of paragraph 2.1
(b)
(iii)
(dd)
on several grounds. First, it was contended that it offends good
morals, is unlawful and unconstitutional as the paragraph in effect
nullifies the right of all asylum seekers to get married. Second,
that its wording is contradictory and vague in that it recognises
the
right of asylum seekers to get married, on the one hand, but then, on
the other, takes away that right by providing that asylum
seekers
must not even contemplate marriage. Third, it falls foul of the
equality provisions of the Constitution. And fourth, it
is in
conflict with South Africa’s international and continental
obligations relating to refugees and asylum seekers.
[8]
In response
to the respondents’ founding papers the appellants filed a
single answering affidavit. The deponent, who is the
first appellant,
called into question the respondents’ wisdom in resorting to
litigation. He contended that their application
was ill- conceived in
that the first respondent should have rather waited for the outcome
of his appeal to the RAB. In this regard,
the implication is that the
respondents would be eligible to marry only if the first respondent’s
appeal were successful.
Moreover, he questioned the existence of the
customary marriage, asserting that the respondents’ desire to
get married was
a ruse to enable the first respondent to secure a
spousal permit status and ultimately permanent residence and
citizenship.
[9]
This, he said,
was calculated to undermine the appeal process underway before the
RAB.
[9]
The
appellants disputed the existence of the customary marriage, alleging
that the relief sought in terms of prayer 4 of the respondents’
notice of motion was a misrepresentation of the true facts. They
denied that the respondents had been barred in any way from entering
into a civil marriage. The stance of the DHA, asserted the
appellants, was merely that if the respondents wished to marry it was
necessary for them to first comply with the laws of the Republic.
[10]
Did the respondents bring
a review before the high court?
[10]
It is convenient at this stage to deal with the preliminary point
raised by the appellants relative to the nature of the proceedings
instituted by the respondents in the high court. It is this. The
appellants sought to argue that the respondents did not institute
review proceedings in the high court. The foundation for this
contention was that the respondents neither requested a record of
the
decision sought to be reviewed, nor did they canvass any grounds of
review in their founding papers.
[11]
The respondents joined issue with the appellants on this score.
First, they argued that the fact that no record was requested
did not
detract from the fact that their application was a review coupled
with prayers for declaratory relief. In support of this
argument they
point to their prayer in the notice of motion in terms of which they
sought an order condoning the filing of their
application outside of
the 180-day period as prescribed in s 9(1) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA).
They also sought an
order that paragraph 2.1
(b)
(iii)
(dd)
of the circular be
reviewed and set aside. Thus, they asserted that they saw no need for
a record as contemplated in rule 53 of
the Uniform Rules, as the
sharp focus of their review was the impugned paragraph of the
circular and nothing else.
[12]
Secondly,
and importantly, they also identified certain paragraphs in their
founding affidavit which demonstrated that a review
was also
contemplated by the respondents. In my view the point taken by the
appellants is manifestly without merit. It amounts
to no more than a
red herring. To uphold it would amount to placing form above
substance, something that courts are enjoined to
eschew. In any
event, in
South
African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan
Smidt & Sons & another
[11]
this court said that a failure to follow rule 53 in review
proceedings is not necessarily irregular, ‘because the Rule
exists
principally in the interests of an applicant’ and an
applicant is free to waive its procedural rights. This court went on
to state that if the respondent is an organ of State, as is the case
here, it is open to such respondent, in answer to the application,
to
supply the record of the proceedings and the reasons for its
decision. In the context of the facts of this case, and having
regard
to the primary focus of the respondents’ case as stated
earlier, nothing turns on the absence of the record.
Was a structural
interdict warranted?
[13]
In coming
to the aid of the respondents, the high court also granted a
structural interdict in terms of which the DHA was directed
to report
back to the court on affidavit, within a prescribed period, on the
steps taken to register the customary marriage and
the solemnisation
of the respondents’ intended civil marriage. That part of the
order was attacked purely on the basis that
no case had been made out
therefor in the respondents’ papers. By way of prelude to a
discussion of this topic, it suffices
to state that, generally, the
grant of a structural interdict is a remedial power vesting in courts
in order to retain judicial
supervision after a remedy has been
granted to ensure satisfactory compliance with their orders.
[12]
It will not be granted willy-nilly. Ordinarily courts proceed on the
assumption that parties against whom an order has been granted
will
ensure that such an order is scrupulously complied with. Should this
not be the case, the applicant would not be without a
remedy.
[14]
The grant
of a structural interdict entails the exercise of a true
discretion.
[13]
An appellate
court is not at liberty to interfere unless it is satisfied that the
discretion was not exercised judicially, or that
it had been
influenced by wrong principles or a misdirection on the facts, or
that the court below had reached a decision which
could not
reasonably have been made by a court properly directing itself to all
the relevant facts and principles.
[14]
[15]
Not a single word was said in the judgment of the high court as to
what weighed with it to justify the grant of a structural
interdict.
This alone points to the fact that the high court did not exercise
its discretion judiciously. Nor was any factual foundation
laid in
the respondents’ founding affidavit motivating for such an
order. Indeed, counsel for the respondents candidly accepted
that she
could not justify this order. Consequently, a combination of these
factors justifies the conclusion that the high court
committed a
material misdirection in granting the structural interdict. It
follows that the structural interdict cannot be allowed
to stand.
What is the legal status
of Circular No 4 of 2016?
[16]
In
Ahmed
& others v Minister of Home Affairs & another
[15]
the Constitutional Court said that the nature and status of a
directive – the validity of which was there challenged –
was unclear. It went on to state that a directive is ‘an
official policy document, which guides government departments on
how
to apply legislation’. It further noted that, according to
Baxter,
[16]
‘departmental
circulars and directives are “administrative quasi-legislation”
which are neither legislation nor
subordinate legislation’.
[17]
At a practical level, directives and circulars essentially serve the
same purpose, which is to give effect to governmental policy
and
guide officials charged with the duty of implementing governmental
policy.
[17]
The
appellants sought to argue that the circular had no force in law and
therefore could neither confer rights nor deprive someone
of any
rights. Consequently, contended the appellants, it was not
susceptible to review by a court. A similar argument was advanced
to
and rejected by the Constitutional Court in
Ahmed
.
[18]
The Constitutional Court explained that where a directive – in
this case a circular – is envisaged in legislation,
a court
would most likely be willing to review it in the light of the
underlying legal authority. The Constitutional Court went
on to say
that, even where a directive is not statutorily envisaged, the court
would still be amenable to review it.
[19]
The Constitutional Court nevertheless declined to pronounce on the
question whether the review would be entertained under the principle
of legality or in terms of PAJA. What mattered, the Constitutional
Court stated, was whether ‘the Directive is treated as
binding
by the people tasked to implement it [in which event] it is
sufficient for [the] Court to make a determination on whether
the
Directive is
ultra
vires
and
thus invalid’.
[20]
[18]
In this case the circular is not statutorily envisaged. Nevertheless
it was treated by the appellants as binding, hence the
respondents
were told that they could not marry. The attitude of the appellants
was undeniably clear: the circular constituted
law, by which the DHA
was bound, and the respondents were duly informed of this.
[19]
Accordingly,
the appellants are not availed by now seeking to contend that they do
not consider themselves bound by the circular.
The truth is that
their case was argued in the high court on the basis that the
circular is a law of general application. Thus,
the appeal must be
determined on the basis of the case as presented and argued in the
high court. Indeed before us counsel for
the appellants was
constrained to accept that generally the task of an appellate court
is to determine whether the court of first
instance was correct in
coming to the conclusion it did on the facts there presented.
[21]
Consequently, Circular No. 4 of 2016 was susceptible to review by the
high court.
Should paragraph
2.1
(b)
(iii)
(dd)
of the circular have been declared
invalid?
[20]
I turn to
consider the appellants’ contention that the high court erred
in declaring paragraph 2.1
(b)
(iii)
(dd)
of the
circular invalid and setting it aside. Counsel for the appellants
submitted that, on its proper construction, paragraph
2.1
(b)
(iii)
(dd)
,
considered in the context of the circular as a whole, does not bar
holders of asylum seeker permits from getting married. In this
regard
counsel called into aid the oft quoted judgment of this court in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[22]
where, amongst other things, the following was said:
‘
[T]he
“inevitable point of departure is the language of the provision
itself”, read in context and having regard to
the purpose of
the provision and the background to the preparation and production of
the document.’
[21]
In elaboration, counsel contended that the purpose of the circular is
to guide marriage officers in solemnising marriages.
He emphasised
that the purpose was not to prevent marriages, but only to prohibit
the solemnisation of marriages involving illegal
immigrants. Counsel
was at pains to point out that the opening sentence of the paragraph
explicitly states that ‘[w]ith effect
from 15 September 2016,
only Home Affairs Marriage officers are permitted to solemnize
marriages to refugees and asylum seekers.’
These words,
continued the argument, manifest no intention to deny refugees and
asylum seekers their right to marry. On the contrary
they affirm such
a right.
[22]
On a complete reading, paragraph 2.1
(b)
(iii)
(dd)
leaves
no room for any doubt. The opening sentence, as argued by counsel for
the appellants, provides that ‘only Home Affairs
Marriage
officers are permitted to solemnize marriages to refugees or asylum
seekers’. It goes on to explicitly prohibit
the solemnisation
of marriages involving persons who are in the country illegally. It
also provides in terms that refugees ‘whose
asylum seeker
application status is pending cannot contemplate marriage’, and
that ‘[s]hould there be an inquiry to
a refugee or asylum
seeker status the marriage cannot be concluded’.
[23]
The
portions of paragraph 2.1
(b)
(iii)
(dd)
put in
inverted commas above cannot be clearer. They can only mean that the
first respondent and similarly situated persons are
denied their
right to marry. That this is how this paragraph was understood by the
officials of the DHA has to be accepted on the
basis of the say-so of
the respondents, which the appellants now admit as correct. There can
be no doubt that the offending parts
of paragraph 2.1
(b)
(iii)
(dd)
highlighted
above implicate constitutional rights of personal liberty
[23]
and human dignity.
[24]
[24]
In
Dawood
& another v Minister of Home Affairs & others; Shalabi &
another v Minister of Home Affairs & others; Thomas
& another
v Minister of Home Affairs & others
[25]
the Constitutional Court underscored the importance of the right to
dignity. It said:
‘
The
value of dignity in our Constitutional framework cannot therefore be
doubted. The Constitution asserts dignity to contradict
our past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future,
to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels. It is a value that informs the
interpretation of many, possibly all, other
rights. This Court has
already acknowledged the importance of the constitutional value of
dignity in interpreting rights such as
the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and
the right to life. Human dignity
is also a constitutional value that
is of central significance in the limitations analysis.’
[25]
That
paragraph 2.1
(b)
(iii)
(dd)
of the
circular is not a paragon of clarity is self-evident. The third to
fifth sentences of paragraph 2.1
(b)
(iii)
(dd)
,
for example, contradict the first sentence. The former sentences also
contradict preceding paragraphs of the circular that affirm
the
rights of asylum seekers to marry.
[26]
The other fundamental shortcoming of this paragraph is that, whenever
there is some sort of inquiry pending into the status of
an asylum
seeker – such as an appeal to the RAB – then the effect
would be to deny him or her the right to marry. Given
their plain
meaning, the words of paragraph 2.1
(b)
(iii)
(dd)
cannot
reasonably be construed so as to allow asylum seekers to marry
pending the outcome of their asylum applications. The context
of the
sentences and the apparent purpose of the circular read holistically,
cannot assist the appellants.
[27]
That the impugned sentences contradict other parts of the offending
paragraph and indeed other material parts of the circular is
no
ground to interpret them as the appellants would want. On the
contrary, it serves as a basis to declare them unlawful because
it is
not reasonably possible to interpret this paragraph in any other way
that is tenable.
[26]
This is all
the more so given the importance of the rights at stake in this case.
As this court rightly observed in
Minister
of Home Affairs & others v Watchenuka & others
,
[28]
‘[h]uman dignity has no nationality’. And most recently
the Constitutional Court aptly observed that ‘[t]he right
to
family life is not a coincidental consequence of human dignity, but
rather a core ingredient of it’.
[29]
[27]
In
Satchwell
v President of the Republic of South Africa & another
,
[30]
albeit in a different context, the Constitutional Court had occasion
to say the following concerning marriage:
‘
In
terms of our common law, marriage creates a physical, moral and
spiritual community of law which imposes reciprocal duties of
cohabitation and support. The formation of such relationships is a
matter of profound importance to the parties, and indeed to
their
families and is of great social value and significance.’
[28]
In
Fourie
& another v Minister of Home Affairs & another
[31]
Cameron JA, writing for the majority, said that the institution of
marriage:
‘
is
vital to society and central to social life and human relationships.
More than this, marriage and the capacity to get married
remain
central to our self-definition as humans. As Madala J has pointed
out, not everyone may choose to get married; but heterosexual
couples
have the choice. The capacity to choose to get married enhances the
liberty, the autonomy and the dignity of a couple committed
for life
to each other. It offers them the option of entering an honourable
and profound estate that is adorned with legal and
social
recognition, rewarded with many privileges and secured by many
automatic obligations. It offers a social and legal shrine
for love
and for commitment and for a future shared with another human being
to the exclusion of all others.’
It
therefore comes as no surprise that the first respondent asserted in
his founding affidavit that, ‘[a]s a pastor in a Christian
community I want to set an example by entering into a civil marriage
with the Second [respondent] as it indicates to all that this
will be
a [monogamous] long term relationship’.
[29]
The final issue to be considered – in the light of the
appellants’ belated acceptance of the existence of the
respondents’ customary marriage – relates to s 10 of the
RCMA. Section 10, which is headed ‘Change of marriage
system’,
reads as follows:
‘
(1)
A man and a woman between whom a customary marriage subsists are
competent to contract a marriage with each other under the
Marriage
Act, 1961 (Act No. 25 of 1961), if neither of them is a spouse in a
subsisting customary marriage with any other person.
(2)
…
(3)
…
(4)
Despite subsection (1), no spouse of a marriage entered into under
the Marriage Act, 1961, is, during the subsistence of such
marriage,
competent to enter into any other marriage.’
[30]
The appellants contended that paragraphs (iii) and (vi) of the order
granted by the high court were not competent and thus
should never
have been granted. In elaboration, counsel argued that the
respondents were not eligible to contract a civil marriage
under the
Marriage Act whilst their customary marriage subsisted. The thrust of
counsel’s argument was that it is implicit
in the heading to s
10 of the RCMA that it was incumbent upon the respondents to change
their marriage system, before they could
permissibly contract a
marriage under the Marriage Act. Counsel emphasised that if it were
not so this would lead to an untenable
situation where the same
couple would be married under two marriage systems, each with its own
marital and proprietary consequences.
Consequently counsel urged this
court to have regard to the heading of s 10 in interpreting the
provisions of the section in order
to elucidate their meaning. But
there is, in my view, a fundamental obstacle in the path of the
appellants on this score.
[31]
It is of
course true that courts have, in certain circumstances, had regard to
the heading of sections in a Statute for purposes
of elucidating a
particular statutory provision. In
Chotabhai
v Union Government (Minister of Justice) and Registrar of
Asiatics
,
[32]
Lord De Villiers CJ stated, with reference to English authority, that
‘the headings of different portions of a Statute may
be
referred to for the purpose of determining the sense of any doubtful
expression in a section under any particular heading’.
More
than a century ago in
Turffontein
Estates Ltd v Mining Commissioner Johannesburg
[33]
Innes CJ held that:
‘
We
are . . . fully entitled to refer to [the heading] for the
elucidation of any clause to which it relates. It is impossible to
lay down any general rule as to the weight which should be attached
to such headings. The object in each case is to ascertain the
intention of the Legislature, and the heading is an element in the
process. Where the intention of the lawgiver as expressed in
any
particular
clause
is quite clear, then it cannot be overridden by the words of a
heading. But where the intention is doubtful, whether the
doubt
arises from ambiguity in the section itself or from other
considerations, then the heading may become of importance. The
weight
to be given to it must necessarily vary with the circumstances of
each case.’
This
position was further endorsed by this court over two decades ago in
Chidi v
Minister of Justice
.
[34]
[32]
The principle to be extracted from the authorities cited in the
preceding paragraph is that headings in a Statute may be resorted
to
only where the meaning of a provision under consideration is
doubtful. Otherwise headings play no role in the interpretation
process where the words are unambiguous and their meaning is clear.
That the provisions of s 10 are unambiguous and clear admits
of no
doubt. Indeed, when pressed, counsel for the appellants was
constrained to concede as much. That being so, it must inevitably
follow that the appellants’ contention relative to this part of
their case cannot be upheld.
Conclusion
[33]
In the
light of what is stated above it follows that this appeal cannot
succeed. It therefore becomes necessary to say something
about the
scale of costs. It was foreshadowed in the respondents’ written
heads of argument that the respondents would ask
for costs on a
punitive scale. This is premised on the contention that the
appellants’ conduct fell far short of the standard
expected of
a State litigant. State litigants have a duty to be fair to their
opponents, and honest and forthright with the court.
In
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazer Institute
[35]
Cameron J pointed out that ‘there is a higher duty on the state
to respect the law, to fulfil procedural requirements and
to tread
respectfully when dealing with rights’.
[34]
The earlier
remarks by Sachs J in
Matatiele
Municipality & others v President of the Republic of South Africa
& others
[36]
are particularly apposite in this case. The learned Justice said:
‘
.
. .the Constitution requires candour on the part of government. What
is involved is not simply a matter of showing courtesy to
the public
and to the courts, desirable though that always is. It is a question
of maintaining respect for the constitutional injunction
that our
democratic government be accountable, responsive and open.
Furthermore, it is consistent with ensuring that the courts
can
function effectively, as section 165(4) of the Constitution
requires.’
[35]
Measured
against these constitutional imperatives, the conduct of the
appellants is lamentable. I have earlier in this judgment
made
reference to the sorry saga to which the respondents were subjected
by the appellants both prior to litigation and in the
course of the
litigation in the high court. The appellants’ answering
affidavit was replete with gratuitous statements impugning
the
respondents’ honesty and motives for instituting review
proceedings. The appellants’ indifference to the plight
of the
respondents continued unabated to this court. Some eight months after
it dawned on the appellants that their refusal to
register the
respondents’ customary marriage was wrong, they still took no
steps to inform the respondents of ‘their
change of heart’
and invite them to their offices in order to register the marriage.
Their conduct is inexcusable and deserving
of censure by this court.
Indeed the appellants must consider themselves extremely fortunate
that there was no call for them to
pay the costs attendant on this
litigation out of their own pockets.
[37]
For all these reasons therefore a punitive costs order is
imperatively called for as a mark of this court’s displeasure.
[36]
Before concluding, it is necessary to say something in relation to
costs in the high court. In their notice of motion the respondents
also prayed for costs. But this was only if the appellants opposed
the application. And this is what the appellants in fact did.
Yet,
the high court did not award the respondents costs consequent upon
their success. Nor has any word been said on costs by the
high court
in its judgment.
[37]
When this
palpable omission was pointed out to counsel they appeared
bewildered, seemingly oblivious to this fact. Thus, the inference
is
inescapable that this omission by the high court was per incuriam and
not deliberate. But nothing more need be said on this
score because
in the absence of a cross-appeal there is nothing we can do to remedy
this omission.
[38]
[38]
In the result the following order is made:
1. The appeal is
dismissed with costs on the scale as between attorney and client.
2. The order of the court
below is amended to the following extent:
2.1 The structural
interdict appended to paragraph (v) of the order is deleted in its
entirety.
2.2 Paragraph (vii) of
the order is deleted in its entirety.
___________________
X
M Petse
Deputy
President
APPEARANCES
For
Appellant: W R Mokhari SC (with N J Sandi)
Instructed
by:
The
State Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
For
Respondent: E Crouse
Instructed
by:
Legal
Aid South Africa, Port Elizabeth
Legal
Aid South Africa, Bloemfontein
[1]
Section 22(1)
of the
Refugees Act provides
that a Refugee Reception
Officer must, pending the outcome of an application in terms of
section 21(1)
, issue to the applicant an asylum seeker permit in the
prescribed form allowing the applicant to sojourn in the Republic
temporarily,
subject to any conditions, determined by the Standing
Committee, which are not in conflict with the Constitution or
international
law and are endorsed by the Refugee Reception Officer
on the permit.
[2]
Section 24(3)
of the
Refugees Act empowers
a Refugee Determination
Officer to:
(a)
grant asylum; or (b) reject the application as manifestly unfounded,
abusive or fraudulent; or (c) reject the application
as unfounded;
or (d) refer any question of law to the Standing Committee for
Refugee Affairs established by section 9 to 20 of
the Refugee Act.
[3]
There is reportedly a backlog of some 200 000 appeals pending before
the RAB.
[4]
‘Refugee’ is defined in s 1 as ‘any person who has
been granted asylum in terms of this Act’.
[5]
Section 4 of the RCMA, titled ‘Registration of customary
marriages’ reads as follows:
‘
(1)
The spouses of a customary marriage have a duty to ensure that their
marriage is registered.
(2)
Either spouse may apply to the registering officer in the prescribed
form for the registration of his or her customary marriage
and must
furnish the registering officer with the prescribed information and
any additional information which the registering
officer may require
in order to satisfy himself or herself as to the existence of the
marriage.
(3)
A customary marriage-
(a)
entered into before the commencement of this Act, and which is not
registered in terms of any other law, must be registered
within a
period of 12 months after that commencement or within such longer
period as the Minister may from time to time prescribe
by notice in
the Gazette; or
(b)
entered into after the commencement of this Act, must be registered
within a period of three months after the conclusion of
the marriage
or within such longer period as the Minister may from time to time
prescribe by notice in the Gazette.
(4)(a)
A registering officer must, if satisfied that the spouses concluded
a valid customary marriage, register the marriage by
recording the
identity of the spouses, the date of the marriage, any lobolo agreed
to and any other particulars prescribed.
(b)
The registering officer must issue to the spouses a certificate of
registration, bearing the prescribed particulars.
(5)(a)
If for any reason a customary marriage is not registered, any person
who satisfies a registering officer that he or she
has a sufficient
interest in the matter may apply to the registering officer in the
prescribed manner to enquire into the existence
of the marriage.
(b)
If the registering officer is satisfied that a valid customary
marriage exists or existed between the spouses, he or she must
register the marriage and issue a certificate of registration as
contemplated in subsection (4).
(6)
If a registering officer is not satisfied that a valid customary
marriage was entered into by the spouses, he or she must
refuse to
register the marriage.
(7)
A court may, upon application made to that court and upon
investigation instituted by that court, order-
(a)
the registration of any customary marriage; or
(b)
the cancellation or rectification of any registration of a customary
marriage effected by a registering officer.
(8)
A certificate of registration of a customary marriage issued under
this section or any other law providing for the registration
of
customary marriages constitutes prima facie proof of the existence
of the customary marriage and of the particulars contained
in the
certificate.
(9)
Failure to register a customary marriage does not affect the
validity of that marriage.’
[6]
Circular No. 4 of 2016: Consolidated Procedures for Solemnisation
and Registration of Marriages (the circular).
[7]
More about the issue of costs later.
[8]
‘1. Condoning the filing of the application outside of the
180-day limit prescribed in section 7(1) of PAJA;
2.
Declaring paragraph 2.1(b)(iii)(dd) of Circular no 4 of 2016, which
was issued by the Deputy Director- General: Civic Service
of the
Department of Home Affairs on 12 September 2016, inconsistent with
the Constitution of the Republic of South Africa 1996
and invalid,
and set aside in so far as it bars the registration of the
Applicants’ customary marriage and bar the solemnisation
of
their civil marriage;
3.
Declaring that the Applicants are entitled, if they so wish, to
enter into a civil marriage.
4.
Declaring that the Applicants are entitled to seek registration of
their customary union if they prove this union to the satisfaction
of the Respondents;
5.
Directing the Respondents to permit the Applicants to submit an
application for the registration of their customary union forthwith;
6.
Directing the First Respondent to within 15 days after such
application as contemplated in the previous paragraph to inform
the
Applicants, their legal representative and this Honourable Court in
writing and under oath of the steps taken to register
the
Applicants’ customary union;
7.
Directing the Respondents to permit the Applicants forthwith to
submit an application for the solemnising of a civil marriage;
8.
Directing the First Respondent to within 15 days after such
application as contemplated in the previous paragraph to inform
the
Applicants, their legal representative and this Honourable Court in
writing and under oath of the steps taken to solemnise
the
Applicant’s civil marriage;
9.
Costs, only in the event of the Respondents opposing this relief set
out herein, and only in respect of such Respondents that
oppose the
relief.'
[9]
According to statistics sourced from the United Nations High
Commissioner for Refugees, it appears that South Africa has become
the most attractive destination for asylum seekers and it ranks
amongst the most sought-after destinations in the world. See,
in
this regard, http://www.unhcr.org/51628b589.html and
http://www.unhcr.org/afr/statistics/country/5a8ee0387/unhcr-statistical-yearbook-2016-16th-edition.html.
[10]
Section 34(1)(a)
of the
Refugees Act provides
that: ‘[a]
refugee must abide by the laws of the Republic’.
[11]
South African Football Association v Stanton Woodrush (Pty) Ltd t/a
Stan Smidt & Sons & another
2003 (3) SA 313
(SCA) paras 5-6.
[12]
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) para 96;
Minister of Heath & others v Treatment Action Campaign &
others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) para 28.
[13]
Trencon Construction (Pty) Ltd v Industrial Development Corporation
of South Africa Ltd & another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) para 85.
[14]
Ibid para 88.
[15]
Ahmed & others v Minister of Home Affairs & another
[2018]
ZACC 39
;
2019 (1) SA 1
(CC) para 44.
[16]
Baxter Administrative Law 3 ed (1991) at 200.
[17]
Ibid at 202.
[18]
Ahmed, fn 14, para 40.
[19]
Ibid para 42.
[20]
Ibid para 45.
[21]
Cole v Government of the Union of South Africa
1910 AD 263
at 272.
[22]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18. (Citation omitted)
[23]
Section 12
of the Bill of Rights headed ‘Freedom and security
of the person’, provides as follows: ‘(1) Everyone has
the
right to freedom and security of the person, which includes the
right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
(2)
Everyone has the right to bodily and psychological integrity, which
includes the right—
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body; and
(c)
not to be subjected to medical or scientific experiments without
their informed consent.’
[24]
Section 10
of the Bill of Rights provides that ‘Everyone has
inherent dignity and the right to have their dignity respected and
protected’.
[25]
Dawood & another v Minister of Home Affairs & others;
Shalabi & another v Minister of Home Affairs & others;
Thomas & another v Minister of Home Affairs & others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC) para 35.
[26]
See paragraph 2.1(b)(iii)(aa)–(cc), which reads:
‘
(aa)
A letter of no lawful impediment should not be required from a
person who is positively identified as a refugee or an asylum
seeker. However, a copy of such person's refugee valid identity
document and valid
section 24
permit, or asylum seeker permit issued
in terms of section 22, of the Refugees Act, 1998 (Act No. 130 of
1998) must be attached
to the “civil" marriage or civil
union register, as the case may be. In addition, a sworn statement
must be obtained
from the SAPS confirming their marital status in
their country of origin.
(bb)
Verification of the refugee identity document, refugee permit or
asylum seeker permit must also be made by an immigration
officer.
(cc)
Verification must be done by means of obtaining a printout from the
Movement Control System if the foreigner is a holder
of a temporary
residence permit.’
[27]
The approach to interpreting legislation and documents is by now
settled. See, for example, Road Traffic Management Corporation
v
Waymark (Pty) Limited
[2018] ZACC 12
;
2019 (5) SA 29
(CC) paras
29-32.
[28]
Minister of Home Affairs & others v Watchenuka & others
[2003] ZASCA 142
;
2004 (4) SA 326
(SCA) para 25.
[29]
Nandutu & others v Minister of Home Affairs & others
[2019]
ZACC 24
;
2019 (8) BCLR 938
(CC) para 1.
[30]
Satchwell v President of the Republic of South Africa & another
[2002] ZACC 18
;
2002 (6) SA 1(CC)
para 22.
[31]
Fourie & another v Minister of Home Affairs & another
[2004]
ZASCA 132
;
2005 (3) SA 429
(SCA);
[2005] All SA 273
(SCA) para 14.
[32]
Chotabhai v Union Government (Minister of Justice) and Registrar of
Asiatics
1911 AD 13
at 24.
[33]
Turffontein Estates Ltd v Mining Commissioner Johannesburg
1917 AD
419
at 431.
[34]
Chidi v Minister of Justice
[1992] ZASCA 77
;
1992 (4) SA 110
(AD) at
115.
[35]
MEC for Health, Eastern Cape and Another v Kirland Investments t/a
Eye & Lazer Institute (Pty) Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC) para 82.
[36]
Matatiele Municipality & others v President of the Republic of
South Africa & others (1)
[2006] ZACC 2
;
2006 (5) SA 47
(CC)
para 107.
[37]
Black Sash Trust v Minister of Social Development and Others
(Freedom Under Law NPC Intervening) [2017] ZACC 8; 2017 (3) SA 335
(CC).
[38]
Shatz Investments (Pty) Ltd v Kalovyrnas
1976 (2) SA 545
(A) at 560
G-H.