Minister of Home Affairs & 3 Others V Amberkar Abdul Aziz & 15 Others (C of A (CIV) 02/2025) [2025] LSCA 2 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV). 02/2025 CIV/APN/0328/2023 In the matter between: MINISTER OF HOME AFFAIRS FIRST APPELLANT PRINCIPAL SECRETARY MINISTRY SECOND APPELLANT OF HOME AFFAIRS DIRECTOR OF IMMIGRATION THIRD APPELLANT ATTORNEY GENERAL FOURTH APPELLANT AND AMBERKAR ADBUL AZIZ FIRST RESPONDENT AHMED EJAZ SECOND RESPONDENT PANCHBHAYA ABDUL SAKUR YUSUF THIRD RESPONDENT KHAN MOHAMMAD NADEEM FOURTH RESPONDENT AKBAR TABISH FIFTH RESPONDENT MASROOR ASIF SIXTH RESPONDENT PATEL RIZVAN YUSUF ADBULLAH SEVENTH RESPONDENT PATEL MAHMAD ZUBER ISMAIL EIGHTH RESPONDENT PATEL SAFWAN YUSUF ABDULLAH NINETH RESPONDENT PATEL NAEEM NAJIR HASSANALI TENTH RESPONDENT PATEL AQSA ELEVENTH RESPONDENT PATEL SEJEDABANU MUBARAK TWELFTH RESPONDENT DANISH MUHMMAD AFFAN THIRTEENTH RESPONDENT DANISH SUMAIYA FOURTEENTH RESPONDENT DANISH FAIZA FIFTEENTH RESPONDENT MALIHA UGH RATDAR SIXTEENTH RESPONDENT CORAM : DAMASEB AJA MUSONDA AJA CHIHNENGO AJA HEARD: DELIVERED : 2 MAY 2025 17 APRIL 2025 FLYNOTE Immigration – Naturalisation – Delay in conferral of citizenship – Legitimate expectation – Mandamus – Ministerial discretion – Judicial deference – Whether High Court usurped Minister’s statutory function – Lesotho Citizenship Order 1971, ss 9(2), 12(2), 14, 16(1) The appellants (the Minister of Home Affairs and others) appealed against the decision of the High Court granting an application by the respondents (foreign nationals of Indian and Pakistani descent resident in Lesotho) for a writ of mandamus compelling their registration as citizens of Lesotho. The respondents contended that they had complied with all the legal requirements, paid the requisite application and citizenship fees, and had been informed of the approval of their applications by the Ministry. They alleged that the remaining formalities, including the oath of allegiance, had been unreasonably delayed despite repeated efforts to obtain finalisation. The appellants denied that any approval had been granted and argued that no conclusive decision had been made by the Minister, who alone is vested with the statutory power to grant citizenship under s 9(2) of the Lesotho Citizenship Order 1971. The High Court granted the relief sought, holding that the Minister had already approved the applications and ordering that the respondents be registered as citizens. On appeal, it was argued that the court a quo erred in finding that the applications had been granted without documentary evidence of such a decision and that the court had exceeded its jurisdiction by usurping the Minister’s discretion. Held, allowing the appeal in part— By s 9 (2) of the 1971 Order, the statutory power to grant or refuse naturalisation is reposed exclusively in the Minister of Home Affairs; no other functionary may lawfully assume that power. There was no evidence on record that the Minister had made a formal order granting citizenship. The fact that fees were paid and expectations created, while relevant to the doctrine of legitimate expectation, did not amount to proof of a conclusive ministerial decision. The High Court erred in ordering registration of the respondents as citizens, thereby improperly substituting its decision for that of the Minister. While judicial intervention may lie in cases of unreasonable delay or procedural unfairness, it does not extend to the usurpation of discretionary executive powers in matters touching on policy and national security. Nevertheless, the Minister’s delay of nearly eight years in finalising the applications was manifestly excessive and unjustified, particularly where it impacted fundamental rights such as freedom of movement. A writ of mandamus directing the Minister to make a decision within a specified period was warranted. Appeal partially allowed. High Court’s order set aside. The Minister is directed to decide the applications within sixty (60) days. No order as to costs. JUDGMENT DAMASEB AJA Introduction 1. This is an appeal against the High Court Judgement (MAHASE J) granting the application by the applicants to be certificated and sworn in as citizens of Lesotho. 2. The applicants sought the Order of mandamus and a declarator against the Minister of Home Affairs, who is reposed with power to approve applications for citizenship under Section 9(2) of the Lesotho Citizenship Order No.16 of 1971. 3. Background The sixteen applicants approached the High Court seeking the following orders: (a) That it be declared that failure by the first respondent to ensure that applicants are registered as citizens despite their applications having been granted, is unlawful. (b) Alternatively, it be declared that the delay involved in processing applicants’ citizenship applications to finality is unreasonable and in violation of their Legitimate expectation to be processed within reasonable time. (c) That the first respondent be ordered and directed to ensure that applicants are registered as Lesotho Citizens within a period of thirty (30) days from the date of the Order hereof and to do all that is Legally required and necessary for such process to be completed. 4. The applicants, comprising men, women and Children are resident in Lesotho. They are of Indian and Pakistan ancestry. They arrived in Lesotho on diverse dates ranging from 2004- 2011. 5. During their stay, they were engaged in business. For example, the first applicant was involved in pharmacy business. The department of Immigration kept on renewing their residence permits. 6. In or about March and May 2017, the applicants applied for Lesotho citizenship for which M2000 was payable by individuals and M5000 by families. According to the applicants, the payments were for their citizenship applications; for which the . requirements were: birth certificate, applicant’s passport, residence permit, Marriage Certificate, application letter from applicant, supporting letter from the Company, Police Clearance, Principal Chief’s Consent, Bank Statement for 6 months, Medical certificate (Chest X-ray Report to be attached) work permit, income tax Clearance Certificate (Company or personal) Trader’s License. These requirements were given to the 1st applicant by the Ministry of Home Affairs. 7. They claim that after their applications were approved, a Citizenship fee of M70,000.00 was payable. The receipt now reads Citizenship fee, as opposed to application fee. 8. On or around 26th May 2020, which was about three (3) years after lodging the applications, the first applicant received a call from the Ministry of Home Affairs informing him of the approval of his citizenship. He was requested to go and pay M70,000-00, which he paid the same day. The other respondents were also informed of the approval of their citizenship applications. The next step, according to them was to be sworn-in and to be issued with certificates of naturalization. 9. Many other people who paid on the same day and thereafter had indeed been sworn. For example, Salim Yusuf Mohamed Doctor and folali Adura Emmanuel with identification who were sworn in around the year 2022. 10. The first applicant wrote to the Minister on 21st October 2021 and 11th November 2021, Annexure AHA8 and AHA9, respectively, reminding him of the pendency of his application. A year later, on 27th July 2022, he and colleagues sought the Minister’s intervention—that was five years later. There was no response. 11. The first applicant on 12TH May 2023, had to apply for a pending permit; as he was desirous of attending a prayer session in Saudi Arabia. After the initial refusal, he was issued with permit NO. MASE/031019/0020/01. 12. The First applicant and his colleagues engaged Counsel to intercede on their behalf. Counsel wrote a letter of demand on his behalf, lamenting the delay in his client being allowed to take the Oath of allegiance, which had rendered their clients stateless. 13. It was alleged that, having successfully submitted their citizenship applications and paid the requisite fees, the applicants had a legitimate expectation that their applications would be processed within a reasonable time. The High Court There was unanimity among the applicants that their applications for citizenship were approved by the Minister three (3) years after lodging them. The proof of that lies in the fact that the Ministry invited them to pay seventy thousand (M70,000) for citizenship aside from the payment of M2000 and M 5000 application fees for individuals and families respectively. What remained was the ceremony of taking the oath of allegiance to the Kingdom of Lesotho before his Majesty the King. 15. The High Court took the view that the second respondent swore the answering affidavit making phony assertions. The deponent states that the power to grant the certificate of naturalization rests in the Minister alone. She asserts on behalf of the Minister that he had observed that the applicants were not bona fide applicants. They were going to use the country’s Citizenship to transit to the west, especially the United states of America. 16. The applicants do not add any moral, social or economic value to the Kingdom of Lesotho. They are not medium large investors. They have exacerbated poverty in the Kingdom by reducing the Lesotho Status of economic index from improving to degrading and the worst. The applicants are involved in menial or hand to mouth businesses, which suffocate poor Basotho. They are involved in businesses specifically for Basotho in terms of the business licensing laws of Lesotho. 17. Second respondent bewails some applicant’s payment of application fees in some account other than the consolidated fund. There was an undergoing criminal investigation regarding the acquisition of Citizenship, which will be completed in six (6) months. 18. There was racketeering that is presently ongoing permeated by human trafficking and other felonies. The government was getting tough against those involved. It involves a lot of people operating on Lesotho soil, South Africa and Other countries mostly Asian Countries, so the Second respondent averred. 19. Second respondent averred that applicants do not in any stretch of imagination qualify in the circumstances to the citizenship of Lesotho1. In the following paragraph she Contradicts herself, when she says the Minister will in terms of the law, Section 1 Para 10.12, Answering Affidavit 12(2) of the Lesotho Citizenship Order 1971, order that qualifying applicants be granted Citizenship or not2. 20. The applicants having lived in Lesotho for more than five (5) years did not demonstrate the value they can add to Lesotho, the economic development contribution, contribution to the advancement in technology, transfer of skills and human capital development in general. 21. In the replying affidavit, the first applicant lamented the absence of the answering affidavit from the decision maker namely the Minister, and his report detailing any of the allegations raised by the deponent, the matter should be treated as unopposed. 22. The unsupported allegations relating to the alleged views of the Minister should be ignored as they remain inadmissible hearsay. The first applicant and his colleagues denied any complicity in any illegal activities alluded to by the second respondent. None of them has any pending criminal or civil case. The accusations against them by the second respondent are baseless. 23. It was reiterated that the applicants were qualified for citizenship. After payment of M70,000, they were informed to 2 Para 10.13 await further communication regarding dates for swearing in and issuance of certificates. They have always entertained a Legitimate expectation that the processes would be completed within reasonable time. 24. The learned judge held that according to the Act, it is only the first respondent who can grant the application for citizenship. The applications were granted and huge sums paid. The applicants had no alternative relief after their appeal to the Minister was not responded to, but to approach the High Court. 25. The functionary (the first Respondent) had procrastinated in the finalization of the matter by not having applicants sworn in as Citizens of Lesotho, as they had met the requirement under the Act. 26. The Principal Secretary is not authorized in law to conduct her own parallel investigations, aside of those carried on by the first Respondent. The applicant’s prayer C in the notice of motion talks or speaks to the fact that the first respondent should do that which he is obliged to do namely to direct and ensure that applicants are registered as Lesotho citizens. 27. The learned judge concluded that in absence of a rebuttal that the applicants have not satisfied all the requirements of the Lesotho Citizenship Order No.16 of 1971, Section 9(2) thereof, the applicants had made out a case for the granting of the prayers, they sought in the notice of motion. She granted the application as prayed with cost for two Counsel on an ordinary scale. 28. Aggrieved by this decision, the respondents filed three (3) grounds of appeal: 1. The Court below erred in granting the application as prayed in the notice of motion in that prayer (a), the main prayer, states that the applications for Citizenship have been granted without exhibiting evidence as to who granted the application because on the papers, there is nothing that shows that the Minister ever granted the citizenship applications of the applicants as such prayer (a) and other prayers which flows from prayer (a) ought not have been granted. 2. The court below erred by ordering as it did prayer (c) in particular, in that the court usurped the powers of the Minister to decide the suitability or otherwise of the applicants to be granted Citizenship of the Kingdom of Lesotho. 3. The Court below erred in granting the application prematurely as it did when the least it could order was the referral of the issue of lawfulness or otherwise of the decision on review after such decision has been made in terms of section 9(2) as read with section 10(5) 12(2) and Other provisions of the Lesotho Citizenship Order 1971. Application for Condonation At the start of hearing the appeal Adv Molati applied for condonation of the late noting of the appeal for a week. Adv Tsabeha did not object to the application the court granted the application and invited Adv Molati to substantively argue the appeal. Appellant’s case It was canvassed that the citizenship application was not granted as the certificate from the Minister was absent. 31. There was a dispute of fact, which could not be determined on the papers. The applicants claimed that their citizenship applications were granted, while the respondents deny. It was desirable to hold a trial in the circumstances3. 32. The appellants agree that Mandamus may only be granted where the public official has a clear duly to perform the action ordered and our judgement in Tsepo Fobo v Ministry of Finance & 4 others4, was cited in support. 3 Lekatsa v Marematlou Freedom Party C of A (CIV) 42/2022 (2022) LSCA 41 (11) November 2022 para 16 4 C of A (CIV) No 33/2024(2024) LSCA 28 (1ST November 2024) 33. It was strenuously canvassed that the judge had substituted her decision with that of the Minister. That can only be done in exceptional circumstances5. In administrative review proceedings, it is appropriate to remit the matter to the administrator for proper consideration6. The Minister having not made a decision in the matter he should be compelled to reach a final decision. 34. The respondents argue that the learned Judge Misapprehended the facts. There being a dispute on the facts, Viva Voce evidence ought to have been called or the version of the respondent ought to have been believed in accordance with Plascon Evans Rule7. The respondents argue that the Plascon rule extend to allegations or denials that are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. A respondent’s version can be rejected in motion proceedings only if it is ‘fictitious’ or so far-fetched and clear untenable that it can confidently be said, on the papers alone that it is not cogent. 35. Appellant placed much store in critising the court a quo acting in defiance of the principle of ‘judicial deference’. In pleading for the remittal of the matter to the Minister for consideration Adv 5 C of A (CIV) 60 of 2016 (2018) LSCA 22 (7th December 2018) 6 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another CCT 198/14 [2015] (5) SA 245 CC, Gauteng Gambling Board v Silvestar Development & Others 80/2004 [2005] ZASCA 19 2005 (4) SA 67 SCA (29th March 2005). 7 Plascon-Evans v Van webreck Paints (Pty) ltd (53184) (1984) (3) SA 625 Molati requested that the Minister be given thirty days. In a nutshell that was the appellant case. Respondents’ case on appeal The condesced version of the respondent’s case is that there was an approval of the citizenship application and the receipt of the citizenship fees of Maloti, Seventy thousand (M70,000) at the behest of the Ministry of Home Affairs. This was in addition to the Maloti two thousand (M2000) and five thousand maloti M5000 application fees, respectively. This was pursuant to the exercise of statutory power by the Ministers conferred upon him by section 9(2). 37. The court a quo, it was canvassed was clear that the answering affidavit by the Principal Secretary on behalf of the Minister was inadmissible hearsay and therefore of no effect. The court rightly rejected the averments as uncreditworthy denials. 38 The core complaint by the respondents in the court a quo and in this court, is that approval was done by the Minister, which was a substantive act. In the context of section 16(1) the Minister lodges with the Registrar General after the Ministerial order has been made. The Minister makes the order for the applicants to be granted certificate of registration or naturalization, the applicant pays the prescribed fee, the applicant fills up the necessary declaration renouncing their citizenship, Registrar General effects the registration in the register and the final step is taking Oath as required under section 14. The first and second steps were undertaken by the applicants. The applicant’s gripe is failure by the Minister to complete the process. 39. A writ of mandamus was directed against that omission or malfeasance of office. Legitimate expectation was directed towards the expectation of being issued with the certificate and the taking of Oath of allegiance to the Kingdom before His Majesty the King. The discretion to grant or not to grant is solely vested in the Minister. If the Minister makes a decision, it cannot be rolled back by the 2nd Respondent (Principal Secretary). In a nutshell that was the applicant’s case. The issues (i) Was it competent for the learned Judge to order that the respondents be registered as citizens of the Kingdom of Lesotho. (ii) Did the Minister make a decision which were Judicially reviewable. (iii) Can a writ of mandamus lie against the Minister. 41. A leading case in the commonwealth on legitimate expectation is Attorney General of Hong Kong v NG Yuen Shieu8: Ng yuen Shieu, an illegal immigrant from Macau, entered Hong Kong unlawfully. The Hong Kong government publicly announced that illegal immigrants would be given an opportunity to present a case before being deported. Ng yueu shieu was arrested and ordered to be deported without a hearing, despite this public assurance. The judicial committee of the privy council, ruled in favour of Ng yuen shieu holding that: (i) The government public assurance created a legitimate expectation; (ii) He was entitled to procedural fairness, meaning they should have been given an opportunity to present his case before deportation (iii) The deportation order was quashed because the authorities failed to follow procedures. The decision of the High Court in Mohope v Commander LDF and Others9in this country struck a similar cord with Ng Yuen Shieu’s case. Mohope was a soldier in the Lesotho Defence Force (LDF). He was promised a promotion, but was later denied it without any explanation. He argued that the promise 8 (1983) AC 629 9 CIV |APN|51| 2002 created a legitimate expectation that he would promoted. The High Court held that: (i) The assurance of promotion created a legitimate expectation; (ii) The LDF could not arbitrary depart from its promise without justification (iii) The failure to provide a fair reason or hearing before denying the promotion was unfair and unlawful. 43. There was prayer for a writ of mandamus against the first respondent. A writ of mandamus is a Court order compelling a public official, government body or authority to perform a public duty that they are legally required to fulfil. It is used when: (i) A public official fails or refuses to act in accordance with their duty; (ii) A statutory obligation is ignored or unreasonably delayed; and (iii) There is no other adequate remedy available to enforce the duty. 44. In Lesotho Revenue Authority v Olympic Off Sales10, this Court affirmed that Mandamus can compel public officials to carry out duties where there is an unreasonable delay or failure to act. The case involved the Lesotho Revenue Authority’s failure 10 C of A (CIV) 29|2013 to process a tax refund, and the court held that the authority had a legal duty to act. 45. In Minister of Home Affairs v Eisenberg of Associates11, the Constitutional Court of South Africa ruled that, the Minister of Home Affairs has a duty to process visa applications within a reasonable time. In Lesotho, South Africa and the entire Commonwealth, courts will only grant mandamus when there is a clear duty that has been ignored or delayed without justification. Adv Tsabeha argued that on the papers a case was made out to satisfy prayer (b) in the notice of motion, but conceded that there was no evidence the Minister had determined the issue. The order of approval was not demonstrated on the record. The law Under the law, the the Minister of Home Affairs is the repository of the power to grant the order for the registration of the applicants as the citizens of the Kingdom of Lesotho and no one else. The relevant section 9(2) of the Ordinance is couched in these terms: “If a person by whom an application has been made in pursuance of the provisions of the preceding subsection satisfied the “Minister” that he is qualified under the 11 (2003) (5) SA 219 (CC) subsection so to apply the “Minister may, if in “his opinion” that person would, if registered, be a suitable citizen of Lesotho, order that person be registered as a citizen of Lesotho or otherwise the “Minister” may order that person to be not registered as a citizen of Lesotho. 48. Courts generally exhibit deference to Executive in national security and policy matters, especially when statutes grant broad discretion to Minister or security agencies. In Director General National Security Services v Lietsiso Mothala & Others12, this court upheld the dismissal of National Security Service Officers, emphasizing, the executive discretion in security – related employment decisions. The court refrained from interfering, citing the sensitive nature of national security operations. In Makhalemele v Board of Enquiry of National Security Service13, The High Court addressed the scope of its constitutional supervision concerning decisions made by security agencies. The court acknowledged its limited role in reviewing such decisions unless there was a clear violation of constitutional rights or procedures. 49. It was a misdirection for the court a quo to hold that the Minister had approved the citizenship when there was no evidence on record of the order. During oral hearing. Adv Tsabeha magnanimously conceded that, on the papers there 12 C of A (CIV) 31 of (2019) LSCA 43 (1November 2019) 13 C of A (CIV) 38/2022 [2022] LSCA 43 (11 November 2022) was no evidence of orders to register the respondents as citizens by the Minister. 50. This court addressed the renewal of a Director General’s contract by the Land Administration Authority’s Board without Minister approval. This court held that ministerial approval was a statutory requirement, rendering the Board’s unilateral action invalid. However, the minority opinion emphasized the need for procedural fairness, suggesting that the minister’s refusal without providing substantive reasons or an opportunity for the respondent to be heard was procedurally unfair. 51. There has been a delay of almost eight (8) years to attend to the applications of the respondents despite constant reminders. It cannot plausibly be denied that the delay has an impact on the freedom of movement, which is a fundamental right, as averred by the 1st respondent14. 52. Lesotho follows a common law system influenced by Roman- Dutch law, courts can issue a mandamus to compel a Minister to act where were is an unreasonable delay in making a decision that affect rights. Example, if a person applies for a permit or benefit under legislation and the responsible Minister delays without a justification, the High Court can be approached. The applicant must usually show: 14 Para 39 of the founding Affidavit (i) A legal right to the decisions being made. (ii) That the Minister has a duty to make that decision. (iii) That there has been an unreasonable delay. 53. In Mausingh v Minister of Justice and Constitutional Development and Others15. This case involved an application for a mandamus to compel the Minister to perform a statutory duty. The court reiterated that a mandamus is appropriate when a public authority fails to fulfil a legal obligation, and the applicant has no alternative remedy. The court emphasized the importance of urgency in such applications, noting that applicants must demonstrate they cannot obtain substantial redress through norm procedures. 54. Mokhesi J, s judgement in Tsela v The Principal Secretary Ministry of Justice16 is in accord with Mansingh’s case (supra) Consideration of the appeal The learned Judge ought to have deferred to the Minister to make a decision this was a policy matter and bordering on national security. Since an order had not been made there was nothing to review. It cannot be denied that the delay by the 15 070869/2024 [2024] ZAG PJHC 1972 16 2020 LSHC 29 Minister was inordinate and touched on the fundamental right, the right of movement. 56. Counsel was unanimous that there was extraordinary delay. Adv Molati, for the appellants (the Minister) pragmatically suggested that the Minister be given 30 days to make the order either way. There is no need for this court to belabor whether there was dereliction of duty, by the minister as it is common cause as he/she is vested with power to Act, by Section 9(2)17. When such delays plaque the decision making process they send confidence plummeting in governance. Disposition The learned Judges order a quo is set aside and substituted with the following: (i) The appeal is partially successful. (ii) The Minister is hereby ordered to make a decision on the applications for citizenship submitted by the applicants one way or the other within SIXTY (60) days from the date of this judgement. (iii) Both parties are partially successful. There will be no order as to costs. 17 Lesotho Citizenship Order of 1971 I agree I agree _________________________ P MUSONDA ACTING JUSTICE OF APPEAL _________________________ PT DAMASEB PRESIDENT OF THE COURT OF APPEAL _____________________ M H CHINHENGO ACTING JUSTICE OF APPEAL FOR THE APPELLANTS: ADV L. A. MOLATI FOR THE RESPONDENTS: ADV TSABEHA 23