Du Plessis and Another v Ochurub and Another (APPEAL 251 of 2008) [2008] NAHC 90 (25 September 2008);
Reportable
Special Interest
SUMMARY
CASE NO.: A 251/2008
JAN ABRAHAM GROBLER DU
PLESSIS
MADALEEN MARETA DU
PLESSIS
versus
HULDA CHARMAINE
OCHURUB
THE
MINISTER OF HOME AFFAIRS
PARKER, J
2008 September 25
________________________________________________________________________
Practice - Applications and motions – Urgent application
– Requirements for
Requirements in terms of Rule 6 (12) (b) of Rules of Court –
Principles and factors developed by the Courts thereanent not to be
applied mechanically and inflexibly but in relation to facts and
circumstances of the particular case so as not to divest the Court
of its discretion.
Practice - Interim interdict – When to be granted –
Factors Court ought to
take into consideration – Court finding applicants established
a clear right and balance of convenience favouring applicants and
applicants having no adequate alternative remedy – Court
therefore granting interim interdict.
Constitutional law - Citizenship by registration –
Constitutional requirement in terms of Article 4 (4) of Namibian
Constitution – Constitutional avenue for acquisition of
Namibian citizenship by registration now totally closed.
Constitutional law - Citizenship by registration – Loss
of – In instant case person
ceasing to be such citizen in terms of s 7 (1) (a) of Act No. 14 of
1990 only if he or she has acquired “by voluntary act”
foreign citizenship since the date of Namibia’s Independence –
“Voluntary act” explained – Acquisition of passport
per se not legal and competent evidence of fact of citizenship
– Question whether person has by voluntary act acquired foreign
passport and consequently foreign citizenship raises question about
state of his or her mind, and, therefore, fact, and so calls for
enquiry – For instance, if a person was compelled to take, or
was by fraud or misrepresentation induced to receive, foreign
passport that raises question whether that person had intention to
renounce Namibian citizenship.
Reportable
Special Interest
CASE NO.: A 251/2008
IN THE
HIGH COURT OF NAMIBIA
In
the matter between:
JAN
ABRAHAM GROBLER DU PLESSIS 1st Applicant
MADALEEN
MARETA DU PLESSIS 2nd Applicant
versus
HULDA
CHARMAINE OCHURUB 1st Respondent
THE MINISTER OF HOME AFFAIRS 2nd
Respondent
CORAM: PARKER, J
Heard
on: 2008 September 11
Delivered
on: 2008 September 25
_____________________________________________________________
JUDGMENT:
PARKER, J.:
[1] In this matter, the applicants have made application
for an order in the following terms:
A (1) That the non-compliance with the
Rules and time periods
of the Honourable Court be condoned and
that the matter be heard on an urgent basis.
(2) That a rule nisi
with return date of 10 October 2008 at 10h00 be issued calling on the
respondents to show cause why an order in the following terms should
not be granted:
(2.1) That the first and second respondents immediately
cease to give effect to or act in accordance with the decisions
and/or actions by the first respondent of 29 August 2008, namely:
“That the applicants are no longer citizens of the
Republic of Namibia.”
That the first and second respondents immediately
return to the applicants their:
passports,
certificates of registration as citizens
of the Republic of Namibia, and
identity documents.
That the first and second respondents refrain from
infringing upon or limiting the rights of the applicants as
citizens of the Republic of Namibia in any way whatsoever,
including travel to and from Namibia.
That the first and second respondents pay
the cost of this application jointly and severally, the one to pay,
the other to be absolved.
(3) That pending the return date the orders in
subparagraphs (2.1), (2.2), (2.3) and (2.4) be of immediate and
interim effect.
(4) That the respondents shall be entitled
to anticipate the return date upon 48 hours’ notice.
B (1) Reviewing and setting aside:
(1.1) the decisions and/or actions by the
first respondent taken on 29 August 2008 as follows:
“That the applicants are no longer citizens of the
Republic of Namibia.”
the decision to confiscate and
confiscating by first respondent on 29 August 2008 of the:
passports of the applicants,
certificates of registration as Namibian
citizens of the applicants, and
identity cards of the applicants.
(1.3) the decision to refuse to issue a
letter confirming the Namibian citizenship of the applicants.
Declaring the resolutions and/or actions
as set out in B (1.1), (1.2), and (1.3) above ultra
vires and null and void.
That the first and second respondents pay
the costs of this application jointly and severally, the one to pay,
the other to be absolved.
That the honourable court grants such
further and/or alternative relief as it may deem fit.
[2] The applicants have brought the application on
urgent basis. In his founding affidavit (with which the 2nd
respondent makes common cause), the 1st applicant avers
that upon their entry into Namibia on 15 August 2008 with their South
African passports, the Namibian authorities granted to each one a
ninety-day visitor’s visa, which expires on 14 November 2008,
and that they were under a well-grounded apprehension that the 2nd
respondent might revoke their visas at her pleasure during the visa
period, resulting in their expulsion from the country. Furthermore,
they contend that during the visa period they are unable to live with
the uncertainty and pressure of suddenly no longer being welcome in
Namibia, having been summarily deprived of their Namibian
citizenship. Besides, they need their identity cards to carry out
banking transactions. They also say that they were advised (I take
it by their legal representatives) that if the application was not
brought on argent basis but the Court was approached in the ordinary
course, the matter would not be heard and they would not obtain
relief before the expiration of their visa period. Mr. Barnard,
counsel for the applicants, more or less argued along the same lines
apart from adding that since their right to Namibian citizenship had
been taken away or threatened by the unlawful act of the 1st
respondent, it was urgent that they were heard and their fate known
before the expiration of the applicants’ visitor’s visas;
for if they left the country, there was no guarantee they would be
allowed to return to the country.
[3] Mr. Marcus, counsel for the respondents, argued
strenuously contrariwise. The main tenor of his argument is that the
applicants have not in terms of Rule 6 (12) (b) of the Rules of Court
set out explicitly the circumstances on which they rely to render the
matter urgent and the reason why they claim they cannot be afforded
substantial relief at a hearing in due course. In support of his
argument counsel referred to me this Court’s decision in Mweb
Namibia (Pty) Ltd v Telecom Namibia Limited and others Case No.:
[P] A 91/2007 (Unreported). Doubtless, the decision in Mweb is
good law as it reiterates and approves the principles and factors
developed by the Courts in the interpretation and application of Rule
6 (12) (b). For instance, it was approved in Mweb that
failure to provide reasons “may be”, not shall
be, fatal to the application and that “mere lip service”
is not enough (at p 23). In this regard, I do not think the
applicants have not given any reason: their reason may or may not be
acceptable by the Court, but that does not mean they have not given
any reason at all: it is within the Court’s discretion to
accept or reject it. What the applicants say is that they honestly
believed that the 2nd respondent could revoke their
ninety-day visa at her whim; and they were advised, which advice they
verily believed – I suppose – that if they approached the
Court in the ordinary course they would not be heard and the relief
they seek be determined before the expiration of their visitor’s
visas.
[4] The basis of their apprehension about the revocation
of their visas was, according to them, the way the 1st
respondent was “cold and final” when she took from them
their Namibian passports, certificates of registration and identity
cards and told them, “You are no longer Namibian citizens.”
They state that the 1st respondent refused to listen to
any explanation. The 1st respondent does not deny that
she refused to listen to any explanation. What she denies is that
she was cold towards them; for according to her, she rather offered
to assist them “to apply for a permit to enable them to stay in
the country after the expiration of their visitors permit.”
The 1st respondent goes on to state that after the 1st
applicant had asked where he should go, she “told him to go to
counter 5 at the ground floor of the Ministry’s building.”
It seems to me clear that what she meant was that the applicants
were not entitled to stay in the country beyond their visa
period; they had to apply to stay in the country.
[5] The advice that the 1st respondent gave
to the applicants was wrong in law, if regard is had to s 7 (2) (a)
(i) of the Namibian Citizenship Act, 1990 (Act No. 14 of 1990).
According to that provision a person who ceased to be a Namibian
citizen in terms of s 7 (1) (a) of Act No. 14 of 1990 and was
ordinarily resident in Namibia at the time he or she so ceased to be
a Namibian citizen was entitled to reside in Namibia; but – and
this is significant – the Minister of Home Affairs may on
certain statutory grounds take away the entitlement. Indeed, it was
only during the hearing of the present application that Mr. Marcus
drew the Court’s attention to s 7 (2) (a) (i) of Act No. 14 of
1990. But before that, the position of the 1st respondent
and the honest belief of the applicants based on the 1st
respondent’s position had been that they must apply in order to
stay in the country after the expiration of their visitor’s
visas.
[6] Thus, the 1st respondent’s wrong
advice indubitably helped to deepen the fears and trepidation of the
applicants that they would lose out if they did not approach the
Court on an urgent basis. Who could blame them? If the application
to stay in the country beyond the visa period was refused and they
had to leave the country, it might not be possible to bring an
application to this Court timeously enough in order not to be told at
that stage that they had created their own emergency. But, of course,
now we know that that might or might not happen, as I have already
explained.
[7] Indeed, one of the important principles reiterated
by this Court in Mweb supra is that an applicant, who is
seeking an indulgence that his or her matter be heard on urgent
basis, cannot succeed, when he or she has created the emergency
either in bad faith or through his or her blameable remissness or
inaction. Thus, it has been stated by the Courts that an applicant
should not delay in approaching the Court and wait until a certain
event is imminent and then rely on urgency to have his or her matter
heard. In fact, one of the reasons why the Court in Mweb
refused to hear the matter on urgent basis is that the urgency was
self-created. That is not the situation in the present application;
application has been made swiftly.
[8] Yet another important aspect the Court may consider
and which the Court in Mweb discussed is the convenience of
the Court. This aspect was also relied on by Mr. Marcus in his
submission. In my respectful view, this aspect appears to be tied up
with the self-created-urgency factor; that is, an applicant who by
his inaction has been lax in bringing an application timeously cannot
then expect the Court to allow him or her to thrust his or her
application on the Court’s roll and by so doing inconvenience
the Court and the respondent. These situations do not exist in the
present application. The application has been brought quickly, and
the 1st respondent was able to file an answering affidavit
which seeks to answer all the allegations contained in the founding
affidavit.
[9] Mr. Marcus argued further that in any case, if the
applicants ceased to be Namibian citizens, they could still reside in
Namibia in terms of the aforementioned s 7 (2) (a) (i) of Act 14 of
1990, as aforesaid. In that case, so the argument goes, the
applicants’ reason for craving the Court’s indulgence to
hear the matter on the basis of urgency is not well founded because
the application need not be heard and a decision taken within the
period of the applicants’ visitor’s visas: the
application could be brought in the ordinary course and they could
get relief in due course.
[10] At first blush, the argument appears to be
attractive, but on closer look it is over-simplistic. Section 7 (2)
(a) (i) only applies to those who had obtained citizenship by
naturalization or by registration, like the applicants, and who have
ceased to be citizens. But in the present case, whether or not
the applicants have ceased to be citizens of Namibia and, therefore,
can come under the effect of s 7 (2) (a) (i) is precisely the
question that this Court is called upon to determine. If that
question was not in issue then Mr. Marcus might be correct in
submitting that applicants are entitled to reside in Namibia after
their visa period and bring the application in the ordinary course. I
say “might be” advisedly because the argument is not
totally correct; for the Minister has discretion to take away this
entitlement any time.
[11] Doubtless, in determining whether the requirements
of Rule 6 (12) (b) have been met, the Court, as I have already said,
ought to take into account the principles and factors developed by
the Courts thereanent. But, in my opinion, the Court should not
fetter its discretion by applying those principles and factors
inflexibly and mechanically: each case must be decided on its own
facts. Having applied the principles and factors to the facts and
circumstances of this case, I think I must exercise my discretion in
favour of granting paragraph (1) of the prayers in the Notice of
Motion (A). The result is that I have decided to condone the
applicants’ non-compliance with the Rules and to hear the
matter on urgent basis. I now proceed to determine the application,
i.e. the interim interdict on the merits.
[12] In Graham Stuart Cumming v Delie Enterprises CC
Case No.: A 109/2006 (Unreported) at p 4, I cited with approval the
requisites for an interim interdict that Fannin, J set out in
Pietermaritzburg City Council v Local Road Transportation Board
1959 (2) SA 758 (N) at 772C-E. The learned judge stated:
This is an application for an interim interdict and the
applicant must therefore satisfy me:
that the right sought to be protected is clear, or
(i) that it is prima
facie established, and
there is a well-grounded apprehension of irreparable
harm to the applicant if the relief is not granted and it
ultimately succeeds in establishing its right, and
that the balance of convenience favours the applicant,
and
that the applicant has no other satisfactory remedy.
Setlegelo v Setlegelo,
1914 A.D. 221 at p. 227; Olympic Passenger
Service (Pty) Ltd. v Ramlagan, 1957 (2) SA
382 (N) at p 383.
It need hardly be said that in view of the discretionary
nature of interim interdict the requisites are not judged in
isolation since they interact. (LAWSA, vol. 11 (1995-1996)
para. 323; Rossing Uranium Ltd v Cloete and another 1999 NR
98)
[13] Thus, on the strength of the authorities, I ought
to grant the interim relief sought if (1) the applicants succeed in
establishing (a), (c) and (d), or (2) if they succeed in establishing
(b), (c), and (d), as set out in the Pietermaritzburg City Council
supra.
[14] In my opinion, whether the applicants’ legal
right is clear or, if not clear, is “prima facie established
though open to some doubt” (Setlegelo supra at 227) will
depend solely on whether the applicants have acquired citizenship of
South Africa since Independence, and as a consequence have ceased to
be Namibian citizens. Thus, there must now be a consideration of the
right which the applicants seek to establish and which I am asked to
protect in the interim pending a final decision in the review
application (B), which the applicants have instituted simultaneously
with the present Notice of Motion. (See Pietermaritzburg City
Council supra.) I hasten to add that I have not overlooked the
authorities that counsel referred to me. I do not think I should
garnish this judgment with extracts from those authorities. In any
event, many of them are not of real assistance on the consideration
of the interim relief.
[15] The facts of this case which are not in dispute are
briefly as follows. The applicants are husband and wife. Having been
ordinarily resident in Namibia for more than five years before
Namibia’s attainment of independence and statehood, the
applicants, who were South African citizens by birth, applied for,
and acquired, Namibian citizenship by registration in pursuance of
Article 4 (4) of the Namibian Constitution. Their certificates of
registration issued in terms of s 4 of Act No. 14 of 1990 are dated 7
May 1993. As a statutory requirement, the applicants had to renounce
their South African citizenship before being granted Namibian
citizenship by registration. (See Louis Augustinus v The Minister
of Home Affairs and Immigration Case No. A 279/2007
(Unreported).) The documentary proof that they did renounce their
South African citizenship are the declarations in Annexure H05 and
H05, attached to the 1st respondent’s answering
affidavit, which are dated 1 August 1990. (These declaration of
renunciation documents have been duly translated, at times freely,
into English.) An adjunct to each of the applicants’
declaration of renunciation of their South African citizenship is the
following:
REGISTRATION OF DECLARATION
Registered with the Department of Home Affairs under
registration number D25/90
It is hereby certified that M M du Plessis ceased
to be a South African citizen in terms of section 16 (2) of the South
African Citizenship Act, 1949 (Act No. 44 of 1949), this (day) 2nd
(month) August (year) 1990.
[Signed]
……………………………
Director-General
Department of Home Affairs
Pretoria
02 AUG 1990
OFFICE OF THE
SOUTH AFRICAN
REPRESENTATIVE
PO Box 23100- Windhoek 9000
_________________
REGISTRATION OF DECLARATION
Registered with the Department of Home Affairs under
registration number D24/90
It is hereby certified that JAG du Plessis ceased
to be a South African citizen in terms of section 16 (2) of the South
African Citizenship Act, 1949 (Act No. 44 of 1949), this (day) 2nd
(month) August (year) 1990.
[Signed]
………………………………..
Director-General
Department of Home affairs
Pretoria
02 AUG 1990
OFFICE OF THE
SOUTH AFRICAN
REPRESENTATIVE
P O Box 23100- Windhoek 9000
[16] Thus, according to the South African authorities,
the applicants ceased to be South African citizens in terms of that
country’s applicable law on 2 August 1990. It is significant
to note that it is indicated that the declarations of the 1st
and 2nd applicants were registered with the Department of
Home Affairs under Registration No. D24/90 (in respect of the 1st
applicant) and D25/90 (in respect of the 2nd applicant).
It is also significant to note that these declarations were made in
Windhoek and filed with the Office of the South African
Representative (the predecessor of the High Commission of South
Africa in Windhoek), and therefore when it is recorded in the
Registration of Declaration on 2nd August 1990 that the
declaration is “registered with the Department of Home
Affairs”, it does not, in my view, by that fact alone mean that
the declarations had been registered with the Department of Home
Affairs in Pretoria, South Africa. I make such conclusion because
the declarations were made on 1st August 1990 in Windhoek,
and they were received in the Office of the South African
Representative on 2 August 1990. Thus, the likelihood that the
declarations might not have been sent over to Pretoria for them be
recorded in the central records of that Department of Home Affairs in
Pretoria is, in my opinion, very high. It must be remembered that we
are talking about a period before South Africa joined the comity of
nations as a constitutional democracy.
[17] Be that as it may, as I have said, as far as the
South African authorities were concerned, the applicants ceased to be
South African citizens on 2 August 1990. It must in this regard be
said that the 2nd respondent would not have granted the
applicants Namibian citizenship if she had not been satisfied that
the applicants had duly renounced their South African citizenship,
and their renunciation accepted by the South African
authorities. I will return to this conclusion in due course in
relation to Mr Barnard’s submission on the issue of
renunciation.
[18] The upshot of all this (which, as I say, is not in
dispute) is that the 1st applicant and the 2nd
applicant ceased to be South African citizens on 2 August 1990, and
they acquired Namibian citizenship by registration on 7 May 1993.
Accordingly, that in terms of the applicable law, the applicants
cannot be both Namibian citizens and South African citizens at the
same time is common cause between the parties.
[19] Against the backdrop of these undisputed facts and
my conclusions thereon, I take the enquiry to the next level. In the
founding affidavit, the applicants state that they had difficulty in
obtaining visas, allowing them to stay in South Africa as visitors
for long periods in order “to satisfy their requirements”.
They, therefore, decided in 1999 to apply for permanent residence in
South Africa because they had been advised (they do not say by whom)
that that would allow them to sojourn in South Africa for long
periods whenever they visited that country. According to them, they
decided to apply for permanent residence permits in South Africa
because it had never been their intention to relinquish their
Namibian citizenship; this is significant, as shall become apparent
shortly.
[20] In pursuit of their desire to obtain permanent
residence status in South Africa, they made enquiries at the
Department of Home Affairs, Paarl, South Africa, as to the
requirements for obtaining permanent residence in South Africa. To
their chagrin, an official at that Department informed them that
according to the records he had consulted, the applicants were still
South African citizens. The applicants say that they were surprised
to hear that because they knew that they had as far back as 1990
renounced their South African citizenship when they applied for
Namibian citizenship.
[21] The applicants did not insist before that official
that they were no longer South African citizens. Their explanation
for failing to do so appears to me to be this: they thought that if
they got South African passports as that South African official at
Paarl had advised them they were entitled to do because, according to
him, they were still South African citizens, they would then be able
to stay in South Africa for long periods whenever they visited that
country. They state further that the South African documents did not
help them to overcome their problems with visitor’s visas for
that country, so they renewed their effort to apply for permanent
residence permits in South Africa. All this, in my view, also goes to
prove that the applicants had not until 2008 travelled on their South
African passports, as I have mentioned below; otherwise, it is
inexplicable that they would not be able to stay in that country for
as long as they wished whenever they travelled there, if they entered
that country on their South African passports.
[22] It was their renewed effort to apply for permanent
residence in South Africa that has brought them to this Court. Thus,
the next important facts in the present matter is that when the
applicants went to the South African authorities in Windhoek to apply
for South African permanent residence permits, the South African
authorities required a letter from the 2nd respondent
confirming that the applicants were Namibian citizens. They
approached the 1st respondent for the purpose of obtaining
such letter. There appears to be only a little difference between the
recollections of the 1st applicant and the 1st
respondent as to what transpired when the former went to the latter’s
office.
[23] I need not bother myself so much with the slight
divergence of recollections. What I find to be credible evidence is
that the 1st respondent saw from the applicants’
files with the 2nd respondent that the applicants had in
August 1990 renounced their South African citizenship in order to
acquire Namibian citizenship. The 1st respondent states in
her answering affidavit:
First applicant informed me that he and his wife had
obtained South African citizenship and he showed me the South African
passports to that effect. I informed first applicant that by
acquiring South African citizenship they had lost their Namibian
citizenship in terms of the Citizenship Act. I then informed him that
I will retain their passports, identification cards and citizenship
certificates.
According to the applicants, this is what happened:
Upon my visit with the first respondent on
29 August 2008 I explained everything to her as set out above. She
looked at all the documents. She saw the South African passports and
identity documents. She then took hold of the second applicant’s
and my passports, certificates of registration and identity cards.
She refused to give it back and stated:
“You are no longer Namibian citizens.”
The respondent refused to listen to any
explanation. She was cold and final.
[24] What is important for my present purposes is that
it cannot be controverted that the 1st respondent took
from the applicants their Namibian passports, identity cards and
citizenship registration certificates because as far as she was
concerned, “by acquiring South African citizenship they had
lost their Namibian citizenship” in terms of Act No. 14 of
1990. I do not believe that the 1st applicant informed the
1st respondent that they had “obtained South African
citizenship”. Why should the 1st applicant do that?
In my opinion, a little reflection would show that the 1st
applicant was under no legal obligation to take the trouble to go to
the 1st respondent’s office just to tell her that he
and his wife had “obtained” South African citizenship.
The 1st respondent ought to have listened to the 1st
applicant’s explanation for approaching her as he did. I shall
return to this reflection in due course.
[25] In the founding affidavit, the applicants sought to
establish that it had never been their intention to relinquish their
Namibian citizenship and that is why they had never travelled on
their South African passports. Their statement that they had only
used their South African passports once to travel with appears to be
true, as I have already intimated. The passports bear only one
departure-stamp of South African Passport Control and one entry-stamp
of Namibian Immigration Control – all dated 15 August 2008. In
this regard, they state further that they were forced by
circumstances to exit South Africa and enter Namibia on that date
with their South African passports because their Namibian passports
had been stolen in South Africa. New Namibian passports were issued
to them after their return to Namibia on 15 August 2008. These were
the passports that the 1st respondent took from them.
[26] The crucial question I must answer is this: have
the applicants acquired by voluntary act South African citizenship
since Independence within the meaning of s 7 of Act No. 14 of 1990?
Section 7 of Act No. 14 of 1990 in material part provides:
A Namibian citizen who has acquired his or
her citizenship by registration or naturalization shall cease to be
a Namibian citizen as such if, on or after the date of Independence
–
(a) such person is of or over the age of
18 years, and by voluntary act
other than marriage acquires the citizenship of a foreign country; …
My emphasis)
[27] Relying on the dictionary meaning of the verb
“acquire”, Mr. Barnard argued that the word indicates or
presupposes a new acquisition. One of the dictionaries he relies on
is the Concise Oxford Dictionary. The 9th edition
defines “acquire” thus: “acquire (as a transitive
verb): 1 gain by and for oneself; obtain, 2 come into
possession of …” Counsel went on to submit that the
applicants did not acquire South African citizenship after the date
of Independence: they had that citizenship all along. That may be
so; but they renounced it in August 1990, and each one of them ceased
to be a South African citizen in terms of section 16 (2) of the South
African Citizenship Act, 1949 (Act No. 44 of 1949) on 2 August 1990.
(See the Registration of Declaration documents set our previously.)
[28] Thus, Mr. Barnard’s argument concerning
renunciation is, with the greatest deference, not well founded. He
says,
It is submitted that the requirement to
renounce does not include the requirement that the foreign government
whose citizenship is renounced actually processes that renunciation
and gives effect to the renunciation. If not, it would mean that if
a foreign government refuses to recognize the renunciation of
citizenship a person can never become a Namibian citizen by
registration or naturalization. It is submitted that these
requirement cannot be added to the requirements as set out in the
Constitution.
My answer to Mr. Barnard is that if there is proof that
the Government of a foreign State of which an applicant applying for
citizenship by registration (this avenue is now constitutionally
closed) or naturalization has refused to accept the
renunciation by its national, that national can never become a
Namibian citizen by naturalization. The reason is that in that case
the applicant would not have renounced his or her citizenship in
terms of Article 4 of the Constitution, as the applicant in the case
of Louis Augustinus supra found out. For the avoidance of
doubt, I do not say if the foreign Government fails or refuses to
process the renunciation by its national; “to accept”
and “to process” are two different activities.
[29] But that is not the end of the matter. The
applicants have stated more than once in their founding affidavit
that it had never been their intention to relinquish their Namibian
citizenship in order to take South African citizenship, and have, as
I have already mentioned, explained why they came “into
possession of” South African passports. Thus, according to
them they have not acquired South African citizenship; the 1st
respondent’s position is that they have, and her proof is the
South African passports which they came into possession of in May
1999. The 1st respondent’s position was taken up,
as I see it, in the tenor of Mr. Marcus’s submission. Thus,
according to counsel, if I understood him, the fact that the
applicants acquired South African passports in 1999, that is, after
having acquired Namibian citizenship by registration, is conclusive
proof that they have acquired South African citizenship after the
date of Independence within the meaning of s 7 (1) (a) of Act No. 14
of 1990; and in terms of Namibian law applicable to the applicants,
they cannot posses duel citizenship, i.e. that of Namibia and of
South Africa at the same time.
[30] One must not lose sight of the fact that in terms
of s 7 (1) (a) of Act No. 14 of 1990, what the statute ‘prohibits’
is not mere acquisition of citizenship of a foreign country: one must
have acquired that foreign citizenship by “voluntary act”.
Therefore, logically, the issue under consideration has to be taken
to the next logical step of the enquiry, namely, whether by being in
possession of South African passports, the applicants have “by
voluntary act” acquired South African citizenship?
[31] In the Indian case of Mohammad Khan v A. P.
( ’57) A.A.P. 1047, it was held that a passport was not
evidence of citizenship. In the US case of Domingo Urteriqui v
John N D’Arcy (1835) 9 L Ed 276 at 279, Thomson, J stated,
“Upon the general and abstract question, whether the passport,
per se, was legal and competent evidence of the act of
citizenship, we are of the opinion that it was not.” In my
view, the decisions in Mohammad Khan and Domingo Urteriqui
are good law; otherwise the country, which has given a passport to a
person who made a false statement in an application for a passport
that he or she was a citizen of that country, would be estopped from
contending that that person was not such a citizen. (See Seervai,
Constitutional Law of India, 4ed vol. I, p 347.) By a parity
of reasoning, it would mean that a country, which gave passports to
leaders of African liberation movements to enable them to travel
abroad and around the world in order to prosecute the struggle, would
be estopped from contending that those leaders are not citizens of
that country. Thus, examples are not wanting where countries have
granted passports to citizens who had been denied passports by the
authorities of their own countries for political reasons. During the
apartheid era refusal of passports for political reasons was common
(Dugard, International Law: A South African Perspective, p
283); yet many of those who were refused passports by South Africa
travelled abroad and travelled to and from many countries with other
countries’ passports.
[32] Thus, it was held in Sharafat Ali Khan v UP
( ’60) A.A. 637, (1960) ALJ 461 that the mere acquisition of a
foreign passport would normally be considered sufficient only to
raise a rebuttable presumption of voluntary acquisition of foreign
citizenship, and that the fact that a person obtained a passport may
be capable of explanation. (See also Abdul Sattar v State of
Gujarat A.I.R. 1965 SC 810; Government of Andhra Pradesh v
Syed Mohd. Khan 1963 29 SCJ 178.) To illustrate the point;
suppose, for example, X, an engineer, acquired Namibian citizenship
by registration. X is employed by a Namibian company constructing
roads in country Y. X wishes to return to Namibia, but he has lost
his passport. The authorities in country Y give X that country’s
passport in order for X to leave country Y. X arrives back in
Namibia. Can it be said conclusively that X has acquired citizenship
of country Y “by voluntary act” within the meaning of s 7
(1) (a) of Act No 14 of 1990 without the Namibian authorities giving
X an opportunity to explain the circumstances surrounding his
acquisition of foreign country Y’s passport? I think not. It
is worth noting that the decisions in the Indian cases are persuasive
because the Indian High Courts and the Supreme Court were
interpreting similar provisions in the Indian Constitution. Section 9
(1) of the Indian Constitution inasmuch as it is material provides:
Any citizen of India who by naturalization,
registration or otherwise voluntarily acquires, or has at any time
between the 26 January 1950, and the commencement of this Act
voluntarily acquired, the citizenship of another country shall, upon
such acquisition or, as the case may be, such commencement, cease to
be a citizen of India: …
[33] Thus, I also find that Sharafat Ali Khan
supra represents good law and, therefore, I adopt it, as I have done
the rest of the authorities on the point under consideration. The
fact that one has obtained the passport of a foreign country may be
capable of explanation, and was in fact explained on the facts of the
instant case. The applicants have explained why they obtained South
African passports, which they have used only once since May 1999.
Indeed, when they arrived back in Namibia, having lost their
passports in South Africa, they applied for, and obtained, Namibian
passports within one month of their return to Namibia. They also
took steps to once more renounce their South African citizenship
since they had been informed in South Africa that their renunciation
of South African citizenship, although accepted by the erstwhile
Office of the South African Representative in Windhoek, had not been
placed on the central records of South Africa’s Ministry of
Home Affairs in Pretoria. In this connection, I would not read too
much into the answer “Yes” to para (10) (d) of the
“Determination of Citizenship Status” forms that the
applicants completed. The applicants have said they now realize it
was wrong; and they have offered a plausible reason therefor.
[34] As I have already said ad nauseam, in terms
of s 7 (1) (a) of Act No. 14 of 1990, the acquisition of citizenship
of a foreign country must be “by voluntary act”. In my
opinion, therefore, the phrase “by voluntary act” in
relation to a person raises the question about the state of mind of
that person, and, therefore, of fact (Seervai Constitutional Law
of India, ibid., p 347). After all “the state of a
man’s (and a woman’s) mind is as much a fact as the state
of his (or her) digestion.” (Sabhapati v Huntley (’38)
APC 91 at 97) I, therefore, find that any argument, like Mr.
Marcus’s, which eschews an enquiry into that fact by insisting
that the meaning of s 7 (1) (a) of Act No. 14 of 1990 rests
arbitrarily upon the mere acquisition of a passport is, with the
greatest deference, wrong and must be rejected, as I do. As I say,
an enquiry would determine, for instance, whether a person was
compelled to take, acquire or obtain (I use the words synonymously) a
foreign passport without any intention of renouncing his or her
Namibian citizenship (See Seervai, Constitutional Law of India,
ibid., p 398). In my opinion, any evidence of compulsion,
acceptable by the Court as sufficient, would negative any suggestion
of “voluntary act”. (See Green v Minister of the
Interior 1968 (4) SA 321 (A); Mohd. Ayub Khan v Commissioner
of Police A.I.R. 1956 SC 1623.) Accordingly, in my opinion, the
1st respondent could not have lawfully decided to retain
the applicants’ Namibian passports and other documents, without
proper enquiry whether the applicants had by voluntary act obtained
the South African passports; that is, whether they were compelled to
obtain the South African passports without any intention of
renouncing their Namibian citizenship. (See Mohd. Ayub Khan
supra.)
[35] It follows that on the facts and in the
circumstances of the present case, anything that has been done by the
1st respondent, which has the effect of taking away the
applicants’ Namibian citizenship without any enquiry into the
state of mind of the applicants is inconsistent with the true
construction of s 7 (1) (a) of Act No. 14 of 1990 and, therefore,
ultra vires.
[36] The 1st respondent states in her
answering affidavit that she “then informed him (the 1st
applicant) that I will retain their passports, identification cards
and citizenship certificates.” She does not say what she
intended to do with those documents, or what the effect of such
retention was.
[37] In Delie Enterprises supra at pp 4-5,
relying on the authorities (e.g. Ramlagan supra), I observed
that where an applicant’s right sought to be protected is clear
and the balance of convenience favours the granting of interim
interdict and the applicant has no other satisfactory remedy, no
difficulty presents itself about granting the interim interdict. On
the granting of interim interdict, Holmes, J (as he then was)
observed succinctly thus in Ramlagan at 383C-F:
It thus appears that where the
applicant’s right is clear, and the other requisites are
present; no difficulty presents itself about granting an interdict.
At the other end of the scale, where his prospects of ultimate
success are nil, obviously the Court will refuse an interdict.
Between those two extremes fall the intermediate cases in which, on
the papers as a whole, the applicant’s prospects of ultimate
success may range all the way from strong to weak. The expression
“prima facie established though open to some doubt” seems
to me s brilliantly apt classification of these cases. In such
cases, upon proof of a well grounded apprehension of irreparable
harm, and there being no adequate ordinary remedy, the Court may
grant an interdict – it has a discretion, to be exercised
judicially upon a consideration of the facts. Usually this will
resolve itself into a nice consideration of the prospects of success
and the balance of convenience – the stronger the prospects of
success, the less need for such balance to favour the applicant, the
weaker the prospects of success, the greater the need for the balance
of convenience to favour him. I need hardly add that by balance of
convenience is meant the prejudice to the applicant if the interdict
be refused, weighed against the prejudice to the respondent if it be
granted. (My emphasis)
[38] On the facts and from the conclusions in regard
thereof I have already reached and reasons therefor, I find that in
the absence of a proper enquiry, the respondents could not have
lawfully decided that the applicants have acquired citizenship of
South Africa after the date of Independence within the meaning of s 7
(1) (a) of Act No. 14 of 1990 that can lead to an automatic statutory
cesser of the applicants’ Namibian citizenship in terms of that
Act. That being the case, I find that the right (i.e. the right to
Namibian citizenship that had been lawfully granted to the
applicants), which the applicants seek to protect, is clear. By the
same token, on the facts and conclusions I have already reached
thereanent, I think the applicants’ prospects of success in the
matter in due course is stronger than the respondents’.
Keeping this conclusion in my mental spectacle, as I should upon the
authority of Ramlagan at 383C-F supra, I hold that the balance
of convenience favours the applicants; the prejudice to the
applicants if the interim interdict is refused and they ultimately
succeed is greater than any likely prejudice that may be occasioned
to the respondents if the interim interdict is granted and the
applicants’ review application is later dismissed. In the
later event, the applicants cease to be Namibian citizens upon the
dismissal of their application in terms of 7 of Act No. 14 of 1990.
Unlike the applicants, the respondents have no use of the applicants’
passports, identity cards, and the certificates of citizenship.
Indeed, what the 1st respondent has done is merely to
retain those documents; but the applicants need to use them. As to
the last requisite, namely, that there is no other adequate remedy
available to the applicants; I have no doubt in my mind that the
applicants have no adequate alternative remedy; neither do I see that
an obvious alternative remedy presents itself (Prest, The Law of
Interdicts (1996), p 78; Reserve Bank of Rhodesia v Rhodesia
Railways 1966 (3) SA 656 (SR)).
[39] It follows that I think justice will be done if I
exercise my discretion in favour of granting an interim interdict.
Considering the nature of this matter, I am of the opinion that it
would be fair and reasonable not to make any order as to costs.
[40] In the result, I grant the following order:
That the non-compliance with the Rules and the time
limits of the Court is condoned and the matter be heard on urgent
basis.
That a rule nisi is hereby issued calling on the
respondents to show cause, if any, on 10 October 2008 at 10h00 why
an order in the following terms should not be made:
That pending the final decision in the review
application instituted simultaneously with the Notice of Motion –
the 1st and 2nd respondents
immediately, but in any event not later than 16h00 on 26 September
2008, return to the applicants their passports, certificates of
registration as citizens of Namibia, and identity cards;
the 1st and 2nd respondents be
restrained and interdicted from infringing upon or limiting the
right of the applicants as citizens of Namibia, including their
right to travel from and to Namibia.
That the order in paragraph 2 (a) and (b) shall operate
as an interim order with immediate effect.
There shall be no order as to costs.
______________________________
Parker, J
ON BEHALF OF THE APPLICANTS: Adv. P. C. I.
Barnard
Instructed by: Kirsten & Co
ON BEHALF OF THE RESPONDENTS: Mr. N. Marcus
Instructed by: The Government Attorney