Du Plessis and Another v Ochurub and Another (Case No.: A 251/2008 ) [2008] NAHC 90 (25 September 2008);

Group

Full judgment

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.”


    1. That the first and second respondents immediately return to the applicants their:


      1. passports,

      2. certificates of registration as citizens

of the Republic of Namibia, and

      1. identity documents.


    1. 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.


    1. 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.”


    1. the decision to confiscate and confiscating by first respondent on 29 August 2008 of the:


      1. passports of the applicants,

      2. certificates of registration as Namibian citizens of the applicants, and


      1. identity cards of the applicants.


(1.3) the decision to refuse to issue a letter confirming the Namibian citizenship of the applicants.


  1. 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.


  1. That the first and second respondents pay the costs of this application jointly and severally, the one to pay, the other to be absolved.


  1. 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:

  1. that the right sought to be protected is clear, or

  2. (i) that it is prima facie established, and

    1. 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

  3. that the balance of convenience favours the applicant, and

  4. 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:


  1. 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:


  1. That the non-compliance with the Rules and the time limits of the Court is condoned and the matter be heard on urgent basis.


  1. 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 –

      1. 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;

      2. 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.


  1. That the order in paragraph 2 (a) and (b) shall operate as an interim order with immediate effect.


  1. 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







Download