Victory in the SCA for two brothers after a grueling struggle for their birthright 

SA Migration | 19 Dec 2022

In a satisfying victory for Pro Bono & Human Rights Practice, on Wednesday 25 November, the Supreme Court of Appeal (the SCA) resoundingly dismissed the Department of Home Affairs (DHA) appeal against the judgment of the Gauteng High Court in the matter of the Minister of Home Affairs and Others v Jose and Another (169/2020 [2020] ZASCA 152 (25 November 2020). The High Court had found in the brothers’ favour and ordered the Minister to grant them citizenship within 10 days of its order.

Section 4(3) is a provision which was introduced into the Citizenship Act on 1 January 2013 by way of the South African Citizenship Amendment Act. It makes provision for individuals born in South Africa (SA) to foreign parents who have not been admitted to the Republic for permanent residence, and who have lived in the Republic from the time of birth until obtaining the age of majority, to apply for citizenship, if their births had been registered in accordance with the Births and Deaths Registrations’ Act.

In 2014, after being faced with the realisation that their refugee status was to be withdrawn as part of the Angolan repatriation process, the brothers (born and raised in SA of Angolan refugee parents) pursued every avenue to regularise their stay in SA including obtaining temporary study permits to allow them to finish their schooling. After having been advised by a legal NGO that they were in fact eligible for citizenship under section 4(3), the brothers approached the DHA for assistance in applying for citizenship. They were however turned away by the relevant DHA officials.

Our Practice agreed to assist the brothers on a pro bono basis and made applications on their behalf by way of affidavit. This was the only way that an application could be made as the DHA had failed to put in place the necessary administrative procedures to apply for citizenship. But our attempts to assist them in this manner were thwarted by the DHA and as a result, we were forced to bring a High Court application in June 2017 to enforce their rights. The primary relief sought in the High Court was that the DHA’s failure to make a decision in their applications be reviewed and that the Minister be directed to grant each of them citizenship in terms of section 4(3) of the Citizenship Act.

The application succeeded with costs and in March 2019, Yacoob J ordered the Minister of Home Affairs to grant the applications of each of the brothers for South African citizenship in terms of section 4(3) of the Citizenship Act within 10 days of the order. The learned Judge was of the view that exceptional circumstances existed which rendered it appropriate for the court to order that the applications be granted.

Considering it in the public interest to do so, in August 2019 Yacoob J granted leave to the DHA to appeal to the SCA only on the question whether it was competent in the particular circumstances of this case to order the Minister to grant (as opposed to consider) the brothers’ applications for citizenship.

In a compelling judgment handed down in favour of the brothers, Ponnan JA and Matojane AJA (in which Cachalia and Nicholls JJA and Poyo-Dlwati AJA concurred) recognized the importance of citizenship by quoting Hannah Arendt in their opening paragraph:

‘[c]itizenship is more fundamental than civil rights. ’‘For Arendt, the issue was not simply a question of statelessness, but one of common humanity, and the responsibility we have to one another as human beings who share the world in common. As long as we live in a world that is territorially organized into national states, a stateless person “is not simply expelled from one country” they are “expelled from humanity.”’

The SCA considered the requirements for citizenship in terms of section 4(3) and confirmed that the brothers met the requirements including the fourth requirement that their births had been registered in terms of the Births and Deaths Registration Act. The SCA also rejected the DHA’s defence that the brothers “never applied” for citizenship because, so it was argued, they failed to make use of the correct application forms. The SCA pointed out that this argument was “cynical and self-serving” as the Minister had to date failed to create the necessary application forms for section 4(3) citizenship applications. Despite the narrow scope of the appeal, the DHA also argued that it had no record of the brothers’ applications – an argument the SCA rejected as “plainly disingenuous”.

The SCA held that the DHA had every opportunity to investigate and respond to the claims made by the brothers, but instead in their answering affidavit admitted the relevant allegations by the brothers that established that they met the requirements. It also rejected an attempt by the DHA to argue in the hearing that this (merely) constituted a “conditional admission” made exclusively for the purposes of the application. The SCA considered this argument to be “plainly untenable”.

In its judgment the SCA also considered the recent decision of the Constitutional Court (CC) in the matter of Chisuse and Others v Director-General, Department of Home Affairs and Another where the CC recognised that there may be cases in which a court may need to give directions to the Executive despite the need to consider the doctrine of separation of powers.

The CC held that:

“These authorities must also find application in determining the appropriate relief in a case dealing with citizenship. The reason for this is that citizenship does not depend on a discretionary decision; rather, it constitutes a question of law. The amended Citizenship Act does not require the Department of Home Affairs to consider any public interest when deciding whether or not to recognise a person’s citizenship. Instead, if the requisite conditions to acquire citizenship are satisfied, the Department of Home Affairs is required to recognise this citizenship and proceed with the concomitant administrative procedures, without any further consideration.”

Relying on this dictum the SCA held that the DHA’s argument that the matter had to be referred back to the Minister was pointless, given that the brothers clearly met the requirements of s4(3) and therefore that the appeal was contrived and served no purpose. The SCA also held that the appeal was “unsustainable as a matter of law” given the Chisuse judgment. It accordingly dismissed the appeal with the costs of two counsel.

The only issue that remained, was the issue of a punitive cost order. In their heads of argument filed with the SCA on 3 August 2020, the brothers had argued that the Chisuse judgment effectively disposed of the issue on appeal in their favour and accordingly invited the DHA to withdraw their appeal. In the event that the DHA failed to do so, they requested that the SCA grant a punitive costs order against the DHA and consider directing personal cost orders against the relevant DHA officials who decided to persist with the appeal.

The SCA agreed that the DHA “should have reconsidered its position” upon receipt of the brothers’ heads of argument which it failed to do and that it would therefore be unfair to expect the brothers to bear the costs caused by the appeal after 3 August 2020. The court noted that:

“The question whether a party should bear the full brunt of a costs order on an attorney and own client scale must be answered with reference to what would be just and equitable in the circumstances of a particular case. A court is bound to secure a just and fair outcome. More than 100 years ago, Innes CJ stated the principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant.”

Thus, the SCA granted costs in favour of the brothers on an attorney client scale but decided against a personal cost order as it was of the view that the requirements for same were not met in this matter.

The SCA judgment hopefully brings an end to an arduous struggle by the brothers for recognition of their right to the citizenship and will assist an entire class of similarly situated vulnerable people to rightfully claim their birthright.

www.samigration.com

Decades-long battle for South African citizenship

SA Migration – 19 December 2022

Two brothers born in South Africa to Angolan refugees still face an uphill battle for citizenship despite a high court order. The matter is now in the Supreme Court of Appeal.

11 November 2020: From left, Cristina Sunda with her sons Joseph ‘Chris’ Jose and Jonathan Jose on the pavement in Yeoville, where they sell vegetables. 

After failing to keep up with the payment of his tuition fees, Jonathan Jose dropped out of university after six months. He has now joined his mother on the streets of Yeoville in Johannesburg, selling vegetables outside the Shoprite on Raleigh Street every morning.

After a long battle, the Pretoria high court ruled last year that the Department of Home Affairs had to grant Jonathan, 22, and his brother Joseph “Chris” Jose, 24, citizenship. They were born in South Africa after their parents fled the Angolan Civil War in 1994 as refugees. But the brothers’ celebration was short-lived as the department appealed the ruling in the Supreme Court of Appeal.

“It’s really frustrating and we know our rights and we know we are South African,” Jonathan said ahead of the hearing in Bloemfontein on Wednesday 11 November. “We feel it should be obvious to everyone that we are South African. 

“It’s not like we were born somewhere else. It’s worse that I was born here, I live here, I was schooled here, so every record in our opinion shows we are South African. But home affairs are still refusing. It makes us wonder, do they even care? To us it’s clear they do not care.” 

Jonathan has said previously that the brothers have never been outside of South Africa. “The only [other] place we have been is Durban. We’ve never left the country at all. I never even thought about leaving the country. I have been here all my life.

“If you compare Angolan people and us, we don’t even know Portuguese. All I know is ‘hello’ in Portuguese and that is all. I adapt well with South Africans, I can speak a bit of isiZulu and I have South African friends. I am not Angolan at all, that is how it is.”

Semantics

The department said the Jose brothers erred when they applied for citizenship through letters written on their behalf by Lawyers for Human Rights. 

“As a consequence of the Department of Home Affairs not accepting application by way of email transmission, there was no record of the [Joseph’s] citizenship application, and accordingly, the department could not respond thereto,” it said.

The department said “the same modus operandi was employed” by Jonathan’s attorneys at Lawyers for Human Rights on 13 July 2016, when they corresponded with the department “to request an application for South African naturalisation”.

The department said more attempts were made on Jonathan’s behalf in the form of an affidavit but because it never responded to any of these “applications”, it never considered any of the applications for either brother.

“It is further contended that the above approach by the respondents is legally inappropriate. The mere fact that the department is called upon to grant citizenship, is a decision/step which falls within the parameters of the definition of ‘administrative action’ as defined in Section 1 of Paja [the Promotion of Administrative Justice Act] in that such a decision ‘adversely affects the rights of any person and which has a direct, external legal effect’,” it added.

The department said the high court order to grant the brothers citizenship was impermissible and it wants the appeal court to refer the matter back to the minister to “consider” whether or not to grant the brothers citizenship.

Requirements met

But “what precisely the purpose of this is and what the minister intends to consider is never made clear,” the brothers’ attorney argued, “given that it is already established that the Jose brothers meet all four requirements contained in Section 4(3) of the Citizenship Act.”

The four requirements are that a child must have been born in South Africa, they must have been born to parents who are not South African citizens and who have not been admitted into the country for permanent residence, the child must have lived in the country from birth until the age of 18, and the child must have had their birth registered in terms of the Births and Deaths Registration Act. 

“The appeal is therefore contrived and serves no useful purpose … The appeal is also unsustainable as a matter of law.” 

While the legalities of their citizenship are being challenged in court, the brothers simply want the matter resolved so they can carry on with their lives.

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“Well, basically, I entered university but then I was forced to drop out because of finances. I did my first six months and then I didn’t get my results because I didn’t have enough finances,” Jonathan said. “So I decided to drop out … Right now I’m not doing much, I’m basically just helping my mom sell on the street. It is really tough.”

He said it was difficult for him and his brother to see their friends go to university or find work, while they sit idle at home. “It hurts because I have friends who are studying and they come over and they give me advice and tell me don’t give up on my dreams. To really see your friends go somewhere in life while you remain in the same spot, that is really difficult.

“As years go by, you wonder how long this is going to take. Am I going to be doing the same thing over and over? For us, me and Joseph, you imagine your life: you start working, you take driving lessons after school, do short courses. But we have not done any of those things. So that really impacts our mental health,” he said. 

Judgment in the matter has been reserved.

Qatari Citizens to Enter Schengen Zone Countries Visa-Free

Schengen Visa | 15 December 2022

Qatari nationals are now eligible to travel to the European Union’s Schengen Zone countries without being required to apply for a visa at first.

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Such a decision has been confirmed by the European Parliament, SchengenVisaInfo.com reports.

According to the Brussels Morning Newspaper, the European Parliament Committee on Civil Liberties, Justice and Home Affairs voted in favour of Qatar, while only 16 Members of the European Parliament voted against it. The new decision has been taken amid the World Cup 2022.

Majed bin Mohammed Al Ansari, Advisor to the Deputy Prime Minister and Minister of Foreign Affairs, and Spokesperson for the Ministry of Foreign Affairs stressed that the Ministry of Foreign Affairs expressed delight over the decision that the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament made in order to exempt all citizens of Qatar from visa requirements when travelling to Schengen Zone countries.

Al Ansari also talked about the next steps, which, among others, include the beginning of deliberations in a commission representing the European Commission, the European Union, as well as the European Parliament in order to create a concrete plan for the Schengen visa exemption agreement between Qatar and the EU.

Abdulaziz bin Ahmed Al Malki, Ambassador of the State of Qatar to the European Union and NATO, welcomed the decision considering it a fundamental step toward the finalisation of the exemption file.

He also stressed that the vote comes as part of the efforts of Qatar’s Ministry of Foreign Affairs to care about the interest of citizens and expedite their travels to all countries worldwide.

In April 2022, the European Commission proposed the lifting of visa requirements for Qatar, stressing that these countries have already met all the needed conditions in order for this process to be completed.

“The final objective is to ensure regional coherence and ultimately achieve visa-free travel for all Gulf Cooperation Council countries. Together with our upcoming Joint Communication on the Gulf, this proposal will reinforce the overall partnership and strengthen the cooperation between the EU and the Gulf Cooperation Council,” the High Representative, Borell, stressed previously in this regard.

In addition, a press release published previously by the authority noted that the proposal follows a detailed assessment of irregular migration, as well as public policy and security and economic benefits and the Union’s relations with Qatar and Kuwait.

www.samigration.com

Few Zimbabweans in the queue for new visas 

Business Day | 15 December 2022 

Just 6,000 applications from an estimated 178,000 people had been received by September 

Only 3% of the estimated 178,000 Zimbabweans living in SA under the special exemption permit had applied for alternative visas by September, home affairs minister Aaron Motsoaledi said on Tuesday.

But in a written reply to a question by DA MP Angel Khanyile, Motsoaledi said “more applications are streaming in on a daily basis”

www.samigration.com

Home affairs has dropped central adjudication of visas, after months of complaints 

Business Insider SA | 14 December 2022

The department of home affairs has reversed a decision to centralise the adjudication of long-term visas.

• That plan lasted for only a couple of months, and did not go at all well.

• Embassies – previously accused of sometimes endangering national security or harming the economy – are now back in charge.

As of 1 September, South Africa is no longer centralising the adjudication of long-term visas, the department of home affairs (DHA) confirmed on Tuesday.

That brings to an end a fraught six-month period for those who applied for such visas, previously handled by individual South African missions abroad, and makes consular officials responsible again for deciding who is let in to South Africa

Visa specialists Xpatweb first noted the reversal on the weekend, saying it expected an announcement from the department on the transitional arrangement for visas already in process.

The DHA told Business Insider South Africa only that it "did issue a new directive which came into effect on Thursday 01 September 2022". It did not provide a copy of the directive, despite repeated requests, and has made no public statement on the matter.

Extreme delays in issuing such visas – with delays facilitation companies described as unprecedented – have been a significant headache for foreign companies investing and doing business in South Africa, Business Leadership SA CEO Busisiwe Mavuso told the News24 On The Record conference on Thursday, the same day the reversal came into effect.

WATCH: Home affairs officials caught on their phones as people queue to be helped

The Department of Home Affairs has said it will investigate after officials were filmed using their cellphones while on duty. Video footage of two officials on their phones at the Tongaat office in KwaZulu-Natal was widely circulated on social media. In the video members of the public can be seen waiting to be helped. Acting home affairs director general Thulani Mavuso has...

Those affected have included companies that signed up to President Cyril Ramaphosa's investment drive, but have since said delays nearing a year in processing work visas for critical foreign staff meant they could not start work.

Some companies expressed acute frustration because they could find no way to reach a department official who could provide even a vague prediction of how long a visa would take – or who could even confirm that a visa application had been accepted as properly lodged – making it impossible to plan moves for employees who needed to secure places in schools for children and move their households across oceans. 

Until Thursday, all work visa applications with a duration of more than three months had to be sent to Pretoria for a decision by the director general of the DHA, in an effort to create consistency – and prevent corruption. Visa facilitators said missions were told the DHA was concerned about reports of arbitrary demands for documents, with the implication that these were subtle solicitations for bribes. They were also told that only central decision-making could balance the need for national security with the need to allow foreign investors to move with speed.

But centralisation was a disaster. Visas that previously took between four and eight weeks to issue suddenly took a minimum of 12 weeks – and consultants reported that the reality was closer to eight months.

Their clients, those consultants said, could not wait that long, and would simply take their business to another country.

Visa facilitation companies believe the consular service divisions of missions – still fully staffed to process visas – may now be able to bring turnaround times down to as low as two weeks.

www.samigration.com