SUPREME
COURT OF APPEAL OF SOUTH AFRICA
APPEAL
The Registrar, Supreme Court of Appeal | 25 November 2020
STATUS Immediate
The Minister of Home Affairs and Others v Jose and Another (Case no 169/2020)
[2020] ZASCA 152 (25 November 2020)
Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (the SCA) dismissed an appeal by the first to
fourth appellants,
collectively referred to as the Department of Home Affairs (the DHA), against a
decision of the Gauteng Division of the High Court, Pretoria (the high court).
The first respondent, Joseph Emmanuel Jose (Joseph), was born on 12 February
1996 and the second
respondent, Jonathan Diabaka “Junior” (Junior), was born on 28 August 1997.
They were born in South Africa where they have lived their entire lives. The
parents of the respondents are Angolan citizens, who fled that country in 1995
and sought asylum in South Africa. The respondents, together with their
parents, were granted refugee status in 1997. This endured until January 2014,
when they were informed that their refugee status had been withdrawn. Joseph
was then 17 years old and Junior 16. In August 2013, they were informed by the
DHA that their refugee permits would not be renewed and they were referred to
the Angolan Embassy, where they were advised that in order for them to remain lawfully
in South Africa, they had to apply for Angolan passports, failing which they
faced ‘repatriation’.
The respondents have never been to Angola. They have no family there and know
little about Angola
or the way of life in that country. Neither speaks any Portuguese. Each speaks
only a little Lingala. In
that regard, repatriation would be a forced removal from their country of birth
and home country to a foreign land. When the respondents experienced difficulty
in obtaining identity documents from the DHA, they approached Lawyers for Human
Rights, who advised them that they were eligible to apply for citizenship in
terms of s 4(3) of the South African Citizenship Act 88 of 1995 (the
Citizenship Act).
However, by August 2017, all efforts to obtain citizenship had come to nought.
The respondents
accordingly applied to the high court to direct the DHA to grant them South
African citizenship in terms of s 4(3) of the Citizenship Act. The application
succeeded with costs. The learned judge granted leave to the DHA to appeal to
this Court only on the question whether it was competent in the particular
circumstances of the case to order the Minister to grant (as opposed to
consider) the respondents’ applications for citizenship.
The SCA held that s 4(3) of the Citizenship Act provides for citizenship to be
granted to a child who
meets four requirements, namely, the child must have: (i) been born in South
Africa; (ii) been born of parents who are not South African citizens and who
have not been admitted into the Republic for
permanent residence; (iii) lived in the Republic from the date of their birth
to the date of becoming a
major; and (iv) had their birth registered in terms of the Births and Deaths
Registration Act 51 of 1992.
On the facts, the first three requirements of s 4(3) of the Citizenship Act
were plainly met. Insofar as the
fourth requirement is concerned, s 4(3) applies to a child whose birth has been
registered in accordance with the
provisions of the Births and Deaths Registration Act, ss 1 and 5(3) of which
provide that the registration of birth of a child born to non-South African citizens occurs
through the issuing of a certificate of birth. In the case of each of the respondents, the DHA had issued
certificates of birth. In the circumstances, the respondents satisfied the fourth requirement of s 4(3) of
the Citizenship Act.
The next issue for determination was whether a court could direct the DHA to
grant the respondents’ application for citizenship. The SCA recognised that
whilst the doctrine of the separation of powers must be considered, that does
not mean that there may not be cases in which a court may need to give
directions to the Executive. Based on the precedent of the Constitutional
Court, it is a firmly established principle that citizenship does not depend on
a discretionary decision; rather, it constitutes a question
of law. On the facts, the SCA held that given that it is already absolutely
clear that the respondents
meet all four requirements contained in s 4(3) of the Citizenship Act it would
be purposeless to remit
the matter to the Minister of Home Affairs to make a fresh decision.
The SCA held that on the issue of costs, recent precedent of the Constitutional
Court affirmed that a
court may direct the DHA to grant citizenship to an applicant. Although the
precedent was set after the DHA’s heads had been filed, its position ought to
have changed with the delivery of the Constitutional Court’s judgment. The DHA,
however, continued as if nothing had changed and took no steps to limit the
incurring of further costs. Plainly, it was obliged to have reconsidered its
position, which it failed to do. The SCA held that the conduct of the DHA was
beyond the pale; and an award of costs on an attorney and client scale was
warranted. In the circumstances, the appeal was dismissed with costs on the
punitive scale.