The Supreme Court of Appeal has dismissed an appeal by the minister of home affairs, who was ordered by the high court in Pretoria last year to grant citizenship to two brothers born in SA of foreign parents in the 1990s.
Brothers Joseph Emmanuel Jose and Jonathan Diabaka are entitled to South African citizenship even though their parents are Angolan.
This follows a ruling of the Supreme Court of Appeal on Tuesday, when it dismissed, with a punitive cost order, an application by the home affairs minister for leave to appeal against a court order that he grant citizenship to the two men, who were born in SA of foreign parents.
Joseph and Jonathan, born in SA in February 1996 and August 1997 respectively, have lived in the country their entire lives. Their parents are Angolan citizens who fled that country in 1995 and sought asylum in SA. The parents and children were granted refugee status in 1997.
This endured until January 2014 when the department informed the family that their refugee status had been withdrawn. When the status was withdrawn, Jose was 17 and Jonathan 16.
The department referred them to the Angolan embassy, where they were advised that to remain lawfully in SA, they had to apply for Angolan passports and failure to do that would result in “repatriation”.
The brothers have never been to Angola, they have no family there, know little about Angola, and neither speak any Portuguese.
When they experienced difficulties in applying for South African IDs, they approached Lawyers for Human Rights who advised them that they were eligible to apply for citizenship.
However, their efforts were not successful and they then applied to the high court in Pretoria to direct the department to grant them South African citizenship.
The court ordered the department to grant them citizenship in March last year.
Dissatisfied with this order, the minister applied for leave to appeal to the SCA.
The high court granted leave only on the question of whether it was competent for the court to order the minister to grant, as opposed to consider, the brothers' applications for citizenship.
In the judgment passed on Wednesday, the SCA held that the brothers met the requirements for South African citizenship in terms of the Citizenship Act.
This is because they were born in SA of parents who are not South African and who have not been admitted into SA for permanent residence and that they have lived in SA from the date of birth until they became adult.
On the question of whether a court can direct the department to grant the men's application for citizenship, the SCA said while the doctrine of the separation of powers must be considered, this did not mean that there might not be cases in which a court may need to give directions to the executive.
The SCA said given that it was clear that the men met all requirements for citizenship, it would serve no purpose to send the matter to the minister to make a fresh decision.
The SCA said a recent Constitutional Court judgment passed in July, which sets a precedent, affirmed that a court may direct the department to grant citizenship to an applicant.
The appellate court said though the precedent was set after the heads of argument -setting out the basis for the minister's appeal - were filed, the department's position ought to have changed.
The court said the department was obliged to reconsider its position.
For that reason, the SCA dismissed the minister's appeal with costs on a punitive scale.