Ali and Others Minister of Home Affairs and Another (15566/2016) [2017] ZAWCHC 94; 2018 (1) SA 633 (WCC) (7 September 2017)

Ali and Others Minister of Home Affairs and Another (15566/2016) [2017] ZAWCHC 94; 2018 (1) SA 633 (WCC) (7 September 2017)

Section 4(3) of the South African Citizenship Act 88 of 1995 applies to persons who meet its requirements, irrespective of whether they were born before or after 1 January 2013, provided they attained majority after the section came into force. The applicants only became eligible to apply for citizenship after the enactment of section 4(3), and no vested rights are affected. The respondents' refusal to process their applications infringes their constitutional rights to equality and dignity. The court declines to order the direct granting of citizenship, as this would constitute judicial overreach, but orders the respondents to accept and process the applications within ten days and to...

Citation
[2017] ZAWCHC 94
Parties
Applicant: Miriam Ali; Applicant: Aden Nuredin Salih; Applicant: Kanu Teka Jorsen Nkololo; Applicant: Farieda Nsoki; Applicant: Caroline Masuku; Applicant: Murphy Ngaga; Respondent: Minister of Home Affairs; Respondent: Director-General of Home Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 September 2017
Case Number
15566/2016
Procedural Posture
Review Application / Opposed Motion for Declaratory and Mandatory Relief
Outcome
Application granted in part; respondents ordered to accept and process citizenship applications under section 4(3) and to enact necessary forms.
Judges
E D Wille
Legal Topics
Citizenship by Birth, Retrospective Application of Statutes, Bill of Rights Limitation, Equality Before the Law, Human Dignity
Constitutional Law Administrative Law Citizenship by Birth Retrospective Application of Statutes Bill of Rights Limitation Equality Before the Law Human Dignity

Case Brief

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Parties

Miriam Ali

Applicant

Aden Nuredin Salih

Applicant

Kanu Teka Jorsen Nkololo

Applicant

Farieda Nsoki

Applicant

Caroline Masuku

Applicant

Murphy Ngaga

Applicant

Minister of Home Affairs

Respondent

Director-General of Home Affairs

Respondent

Procedural Posture

Review Application / Opposed Motion for Declaratory and Mandatory Relief

Legal Issues

  1. 1 Does section 4(3) of the South African Citizenship Act 88 of 1995 apply to persons born before 1 January 2013 who attained majority after that date.
  2. 2 Are the respondents obliged to accept and process citizenship applications under section 4(3) from applicants who meet the statutory requirements.
  3. 3 Does the respondents' refusal to process such applications infringe constitutional rights to equality and dignity.

Ratio Decidendi

Section 4(3) of the South African Citizenship Act 88 of 1995 applies to persons who meet its requirements, irrespective of whether they were born before or after 1 January 2013, provided they attained majority after the section came into force. The applicants only became eligible to apply for citizenship after the enactment of section 4(3), and no vested rights are affected. The respondents' refusal to process their applications infringes their constitutional rights to equality and dignity. The court declines to order the direct granting of citizenship, as this would constitute judicial overreach, but orders the respondents to accept and process the applications within ten days and to...

Court Disposition

Application granted in part; respondents ordered to accept and process citizenship applications under section 4(3) and to enact necessary forms.

Orders

  • The respondents are to forthwith accept applications on affidavit from each of the applicants (excluding the fourth applicant) for the granting of South African citizenship in terms of section 4(3) of the South African Citizenship Act 88 of 1995 and to decide on each such application within ten days of receipt.
  • Section 4(3) of the South African Citizenship Act 88 of 1995 applies to persons who meet the requirements of that section, irrespective of whether they were born before or after 1 January 2013.