E.O.C.I v Minister of Home Affairs and Another (1054/2018) [2020] ZAECBHC 11 (28 May 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

Case No: 1054/2018

In the matter between:

E[...] O[...] C[...] I[...]

Applicant

and

THE MINISTER OF HOME AFFAIRS

First Respondent

THE DIRECTOR-GENERAL OF HOME AFFAIRS

Second Respondent

JUDGMENT

Mfenyana AJ

[1] The applicant seeks to review and set aside the decision of the first respondent in terms of which the first respondent revoked the applicant’s citizenship by naturalisation. The applicant was granted South African citizenship by naturalisation on 9 September 2005. The circumstances surrounding the granting of the said citizenship, are a subject of contention in this application. Equally contentious is the date on which the impugned decision was brought to the applicant’s attention with the applicant contending that he only became aware of it over a year after it was taken.

[2] The applicant further seeks an order condoning his non- compliance with section 7(1) read with section 9 of the Promotion of Administrative

Justice Act[1] (the Act) which requires an application for judicial review to be instituted without unreasonable delay and not later than 180 days of being aware of the decision sought to be reviewed. It is necessary to set out the history of the matter, to the extent relevant to the present application.

Factual background

[3] Dr I[…] (the applicant), originally a Nigerian national, arrived in South Africa in or around 1998 to pursue his studies at the University of Pretoria. According to the documents filed of record, he resided in Hatfield, Pretoria, South Africa from March 1999. On 19 December 2001 and at Cullinan, Pretoria, he entered into a civil marriage with C[…] M[…] (Ms M[…]). The marriage subsisted until 11 May 2007 when he obtained a divorce decree in the Pretoria High Court, dissolving the marriage between himself and Ms M[…]. This, the applicant states, was occasioned by their inability to conceive a child.

[4] Back in Nigeria, the applicant had, some few years prior to his arrival in South Africa, concluded a marriage with Ms A[…] A[..] Tomo (Ms T[…]) on 22 May 1993.

[5] Between 1998 and 1999 the applicant proceeded with his studies at the University of Pretoria where he later, also worked as a student

assistant. It appears that the study permit by virtue of which he pursued his studies was renewed and extended from time to time

pending the finalisation of his PhD. He subsequently obtained his PhD in 2003. At the time of acquiring this doctoral qualification, he was already married to Ms M[…] for an approximate period of 2 years. On 30 June 2002, he applied for permanent residence which was approved and granted on 3 February 2003. He was further exempted from the restrictions imposed by section 23 of the Aliens Control Act[2] in terms of section 28(2) thereof which empowers the Minister to exempt certain categories of persons either unconditionally or

subject to specific conditions may be imposed by the Minister. In his case, the exemption was subject to the subsistence of his marriage to Ms M[…]. The relevant portion from the exemption certificate reads:

“EXEMPTION CERTIFICATE ISSUED IN TERMS OF THE MINISTER OF HOME AFFAIRS’ RESOLUTIONS DATED 13 APRIL 2000 FOR THE SPOUSE OF A SOUTH AFRICAN CITIZEN/ PERMANENT RESIDENT

… . This exemption certificate may be withdrawn if the marriage is judicially annulled or terminated within two years from the date of issue of the certificate.”

[6] On 9 September 2005 he was granted South African citizenship by naturalisation following his application on 3 May 2005.

[7] On or around October 2007, following the dissolution of his marriage with Ms M[…], Ms T[…], joined him in South Africa. It is alleged that in 2009 Ms T[…] applied for permanent residence by virtue of his marriage to the applicant and submitted a marriage certificate as proof thereof. On 23 June 2009 the second respondent addressed a letter to Ms M[…], advising her inter alia that her marriage to the applicant was bigamous and therefore void ab initio. The letter further advised Ms M[…] that her marital status had been changed to what it was prior to the said marriage.

[8] On 28 July 2010 the second respondent addressed a letter to the applicant giving him notice of the first respondent’s intention to revoke his citizenship on the basis that he obtained it fraudulently, or through false representation or concealment of a material fact in that his marriage to Ms M[…] was bigamous and that the permanent residence permit which he subsequently obtained and used in support of his application for naturalisation was, as a result, fraudulent. The applicant was required to make representations within 10 days why his citizenship should not be revoked and lastly, he was advised of his right in terms of PAJA, to have any decision by the Minister reviewed. The applicant alleges that the said letter only came to his attention a month later and on 14 September 2010 his attorneys at the time made representations to the first respondent as invited, stating inter alia that he was not aware that his marriage to Ms M[…] was a bigamous marriage as he would not have gone through the trouble of having it dissolved. He admitted that at the time of his arrival in South Africa he was already married to another woman in Nigeria and that as an African man he believed that he was entitled to marry more than one wife. He stated further that he registered his marriage with Ms T[…] (in South Africa) two years after his marriage to Ms M[…] had been dissolved. In essence, the applicant contended that he did not wilfully conclude a bigamous marriage with Ms M[…]. In addition, his attorneys stated that the applicant is a respected academic who has made a tremendous contribution in developing “economic and management skills” in the country. It was contended on his behalf that there were no grounds for depriving him of his citizenship as intended. Despite his representations, the respondents proceeded with their decision to revoke the applicant’s citizenship, and on 29 April 2013 in a letter addressed to the applicant, advised him of their decision to revoke his citizenship, requiring him to hand in any South African documents in his possession to the nearest office of the department. It further appears that the said letter only reached the applicant on 2 October 2013 after which (on 19 November 2013) he lodged an appeal against the decision of the first respondent citing once more that he did not knowingly enter into the bigamous marriage with Ms M[…] knowingly, and that he had made immense contribution to the country. The Minister refused the appeal and communicated his decision in a letter dated 13 February 2017 which according to the applicant only reached him on 15 May 2018. On 7 December 2018, the applicant brought

the present proceedings.

Condonation

[9] Before dealing with the merits of this matter, I deem it necessary to deal with the applicant’s delay in bringing the present application. It is common cause that the present application was brought outside of the timeframe stipulated in the Promotion of Administrative Justice Act (the Act)[3]. The extent of the delay in bringing this application is a source of contention by the parties. The relevance of this, although

significant is also not always fatal to the application. This is so as the courts have in certain appropriate instances condoned

unreasonably long delays. The unreasonableness of any delay is in itself pre-suggested by the Act.

[10] In terms of section 9 the court may, on application, extend the period of 180 days if the interests of justice so require. The wording of the Act in section 7 presupposes that any delay longer than 180 days in unreasonable. Thus the question that stands to be answered by the court is whether the ‘unreasonable’ delay

of the applicant, in bringing the application should be condoned. It is trite that regardless of how unreasonable a delay in bringing an application may be, the court is empowered by this provision, to condone the delay. This will largely depend on whether the interests of justice, given the specific circumstances of the matter, so require.

In Camps Bay Ratepayers and Residents Association and another v Harrison and another[4] the SCA stated the following:

“[T]he question whether the interests of justice require the grant of such extension depends on the facts and circumstances of each case: the party seeking it must furnish a full and reasonable explanation for the delay which covers the entire duration thereof and relevant factors include the nature of the relief sought, the extent and cause of the delay, its effect on the administration of justice and other litigants, the importance of the issue to be raised in the intended proceedings and the prospects of success. That, in my view, plainly contemplates the exercise of a discretion in the ‘loose’ sense.”[5]

[11] Whenever a court is called upon to exercise a discretion, such discretion must be exercised judicially. The exercise of such discretion takes into consideration various factors with the aim of achieving fairness to both parties. It is also trite that the ventilation of issues is one of the considerations to be taken into account by the court over and above the ‘usual’ considerations. Such considerations “… may include the prospects of success …, the importance of the case, the respondent’s interest in the finality of its judgment, to convenience of the court and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive.”[6]

[12] The courts have however cautioned that no one of these considerations

stands in isolation and as such are not individually decisive and must all be weighed up against the other.

[13] The applicant avers that he became aware of the decision on 15 May 2018. He explains the trouble he went to, trying to get hold of his previous attorneys where his file could not be located following the departure of the attorney who was handling his matter at the time. Such difficulties were confirmed by the attorney who assisted the applicant in locating the file who in this regard filed a confirmatory affidavit. The applicant further lamented his financial difficulties in securing the deposit that was required by the attorneys to handle his matter and after two months he consulted with his present attorneys. There cannot be any doubt that ventilation of the issues raised in this matter is of significant importance to both parties. The plaintiff further avers that the decision of the first respondent affects not only his rights but the rights of his wife and children. He avers that the respondent is not prejudiced by the delay, as opposed to the prejudice he and his family stand to suffer should the delay not be excused. While opposing this relief, the respondents have not raised any prejudice they stand to suffer. The SCA in Oudekraal Estates (Pty) Ltd v City of Cape Town[7] stated:

“In reviewing and considering whether to set aside an administrative decision, courts are imbued with a discretion in the exercise of which relief may be withheld on the basis of an undue and unreasonable delay causing prejudice to other parties, notwithstanding substantive grounds present for the setting aside of the decision.”[8]

I find that it would be in the interests of justice to condone the delay and allow the matter to be fully ventilated between the

parties. I now turn to consider the merits of the application.

The applicant’s case

[14] Gleaning from the applicant’s founding affidavit, as well as submissions made on his behalf, both written and oral, it is apparent that the applicant mainly relies on the following grounds:

(a) that the decision was unreasonable,

(b) that “the decision was taken because irrelevant considerations were taken into account or relevant considerations were not

considered”.[9]

[16] The basis for any review application is section 33 of the Constitution[10] which guarantees everyone the right to administrative action that is lawful, reasonable and procedurally fair. Section 6 of the Act gives effect to this right. The relevant provisions state:

(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

(2) A court or tribunal has the power to judicially review an administrative action if-

(a)…, (b)…

(c) the action was procedurally unfair;

(d) …

(e) the action was taken-

(i) … (ii) …

(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;… .

[17] I now turn to deal with the grounds for review as set out by the applicant.

The decision was unreasonable

[18] It is trite that reasonableness will vary from case to case and will inevitably depend on the circumstances of each. O’Regan J in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others[11] put it aptly when she remarked that:

“Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected. Although the review functions of the court now have a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution.”[12]

[19] In this regard the applicant states that his marriage to Ms M[…] was genuine, based on mutual love and affection and that he at no stage had any ulterior motive. He further dispels the respondents’ averments that his sole ‘mission’ was to acquire citizenship, arguing that his relationship with Ms M[…] endured for a total period of 10 years. This was confirmed by Ms M[…] in her confirmatory affidavit where she stated that their marriage was not a marriage of convenience. She provided no further details in this regard. There are some discrepancies in the exact year of the applicant’s arrival in the country with reference being made to 1997, 1998 and 1999. I do not attribute any particular significance to these discrepancies. With the passage of time, memories fade. I take comfort in the fact that this was not raised as a point to be contended with by any of the parties. The applicant further contends that as he obtained his permanent residence on the second year of being married to Ms M[…], the basis for acquiring his permanent residence was not section 26(b) of the Immigration Act[13] as that provision requires a person to be married to a South African citizen for five years. This contention can be quickly disposed of as follows: Section 26(b) does not require an applicant to be married to a citizen for five years. Almost in passing, the applicant contends that his permit was granted in accordance with section 27. He makes no further submissions in this regard. For the sake of completeness I deem it necessary to deal with the provisions and to some extent the requirements of this section. The relevant portions state:

“27. The Department may issue a permanent residence permit to a foreigner of good and sound character who-

(a) has received an offer for permanent employment, provided that-

(i) such foreigner submitted a certification from a chartered accountant acting on behalf of such foreigner's prospective permanent employer that the position exists and that the position and related job description was advertised in the prescribed form and no suitably qualified citizen or resident was available to fill it:

(ii) the Department of Labour certifies that the terms and conditions of such, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens or residents, taking into account applicable collective bargaining agreements and other standards. if any:...”

[20] The result is that whether the applicant’s permanent residence was in respect of section 26(b) or 27 or even 26(a) he would have had to satisfy certain specific requirements stipulated in these sections. The applicant does not say much more in this regard

nor does he aver that he met all the other requirements in respect of his application in terms of section 27.

[21] In respect of his citizenship the applicant further contends that he obtained his citizenship on the basis of his exceptional skills and qualifications and that his application was made on that basis and on the instruction of the department as well as requests

from Ms M[…]. To him, there was no difference between permanent residence and citizenship as both allowed him to work and

live in South Africa. This is not entirely correct. While permanent residence allows the holder to enjoy most of the rights and

privileges enjoyed by citizens, it excludes them from enjoying those rights which are explicitly ascribed to citizens in terms of the law or the Constitution. This includes political rights and rights pertaining to freedom of trade and profession. The applicant

nonetheless contends that he was content with only permanent residence. He further contends that on the basis of obtaining South

African citizenship, he renounced his Nigerian citizenship and having been deprived of his South African citizenship, he is unable to attend to his personal and professional matters including his academic and family responsibilities.

Relevant considerations not considered

[22] The applicant contends that the respondents failed to take into consideration, his contribution to the country in that while employed at the New Partnership for Africa’s Development (NEPAD), he represented South Africa in various fora locally and internationally. He added that as an academic, he has mentored many young researchers some of whom have become academics and professors at various universities and as the head of the School of Public Administration at Fort Hare university he shoulders certain responsibilities including mentoring and guidance to students and staff, and has provided training and development interventions to municipal workers. He has authored and edited various publications and is currently involved in various community projects with the youth and the intellectually impaired, to name a few. The applicant avers that his extraordinary skills and qualifications, and his ‘good

and sound character’ are the reason he obtained a permanent residence permit and not his marriage to Ms M[…]. This cannot be sustained. The certificate of exemption clearly stipulates that the “exemption certificate may be withdrawn if the marriage is judicially annulled or terminated within two years from the date of issue of the certificate.” This was the condition attached to the exemption, and not anything related to applicant’s skills or qualifications.

Irrelevant considerations taken into account

[23] The applicant dismissed as misplaced the allegation that his marriage to Ms M[…] was a fraudulent front in order for him to

obtain permanent residence. He stated that this was never considered in his applications both for permanent residence and citizenship. He contends that the respondents’ reliance on the “Marriage Act, 1991 is an irrelevant consideration as there is no such Act but the Marriages Act of 1961 which makes it an offence to make false statements knowing them to be false. He further contended that the application for a spousal visa by Ms T[...] referred to by the respondents was not part of any ‘mission’ of his, and that to his knowledge Ms T[…] applied for a visitor’s visa and not a spousal visa. Nothing much turns on this in my view as it is not in dispute that the applicant and Ms T[…] are married to each other. The applicant avers that these considerations are irrelevant and should not have played any role in the decision to deprive him of his citizenship. I do not agree.

[24] In conclusion the applicant submits that after his divorce from Ms M[…], he dissolved his marriage with Ms T[…] and entered into ‘another customary marriage’ from which two children were born. The applicant further contends that the

decision taken by the second respondent on 29 April 2013 and the first respondent’s decision dated 13 February 2017 rely on different issues as the former decision states that he acquired his citizenship based on a fraudulent permanent residence permit, and in so saying relied on the Immigration Act whereas the latter takes the view that he acquired his citizenship as a result of concealing his marital status thus relying on the Marriages Act and the Citizenship Act. There is no merit to this argument. No material difference exists in the initial and the final decision taken by the respondents. In any event, it is the applicant’s case that the decision it seeks to review is the final decision of the Minister dated 13 February 2017 and not that of the second respondent. It is apparent from both decisions that the challenge was on the applicant’s citizenship on the basis of false

misrepresentation. Surely it is not the applicant’s contention that any of the cited provisions permit such representations. Mr Kotze, counsel on behalf of the applicant contends that the Marriage Act is self-contained with its own sanctions and processes but this does not mean that section 8 of the Citizenship act will automatically be triggered. I do not understand the applicant to be saying that reliance on the one Act excludes reliance on the other. That would lead to absurdity. I am aware that the reasons for the decision must be apparent from the decision itself. This is indeed the case and this is not challenged by the applicant. Finally, the applicant avers that he had a legitimate expectation which has been adversely affected by the respondents’ decision.

The respondents’ case

[25] In opposing the application the respondents aver that the applicant’s permanent residence application was premised on the fact that he was married to Ms M[…]. They placed before the court the applicant’s permit for permanent residence which

indicates that the application was approved on the basis that he was married to Ms M[…]. There is no indication in the documents

provided to the court that the applicant’s skills and qualifications were taken into account in arriving at the decision to grant him permanent residence. The respondents dispute as baseless, the applicant’s contention that he obtained citizenship on any ground other than his marriage to Ms M[….]. Were this the case, they argue, the applicant would have remained a permanent

resident for a period of 5 years before he could qualify for citizenship. His citizenship was solely on the basis that he was married to a South African citizen. He applied and was granted citizenship two years after acquiring permanent residence by virtue

of his marriage to Ms M[…]. I have already stated that reading from the certificate itself, the condition imposed on the applicant’s exemption has nothing to do with his skills and qualifications.

[26] The respondents further contend that the applicant deliberately concealed his marriage to his Nigerian spouse, Ms T[…] as he would not have been able to enter into marriage with Ms M[…]. They contend that on three occasions when the applicant made application for permanent residence, when he got married to Ms M[…] and when he applied for citizenship, he was required to disclose whether he was married, but did not. I pause here to state that the applicant has provided two reasons for his non- disclosure; (1) that as an African man he believed that he was entitled to marry more than one wife; (2) and later, that he was not aware that South Africa recognised customary marriages so he represented himself as a single. The two reasons are mutually exclusive. The respondents contend that it was on that basis that the applicant’s citizenship was cancelled, having considered his representations. They contend that it is convenient that a few months after the dissolution of the applicant’s marriage with Ms M[…], the applicant reconnected with his wife who later joined him. They further dispel the applicant’s explanation that his marriage to Ms T[…] was a customary marriage and provided a marriage certificate for the said marriage, concluded in a church in Nigeria. They contend that the applicant concluded a civil marriage with Ms T[…] and that the marriage certificate is proof of that. They referred the court to the Nigeria Marriage Act[14], which prohibits marriages where one of the parties is married to another person under customary law, and authorises the officiating

minister to issue a certificate of marriage after the celebration of a marriage. The applicant does not dispute this, but contends that the church ceremony was merely to celebrate the customary marriage. What is apparent from the record which was placed before this court by the respondents is that in his application for a certificate of naturalisation, and for an immigration permit the applicant refers to one “A[…] I[…]” as his sister. This was in response to a question in the application where he was required to state whether he has any immediate family members in his country of origin (father, mother, sister(s), brother(s), husband, wife, children).

[27] It appears from the respondents’ submissions that what set the cat among the pigeons was an application made by Ms T[…]

for some or other immigration permit in South Africa. It is alleged that with her application, she submitted her marriage certificate. A copy of the said application was not placed before the court by the respondents and thus this application remains an allegation which is denied by the applicant as he avers that to his knowledge, Ms T[…] applied for a visitor’s permit. In this regard I hasten to add that the relevance of Ms T[…]’s application is not so much in the nature thereof, but that it brought to the attention of the respondents that the applicant was married to her prior to his arrival in South Africa by introducing their marriage certificate. The marriage is not in dispute. Neither is the veracity of the marriage certificate. According to the respondents the applicant has contravened the Marriages Act, and the Citizenship Act as the enabling documents in his possession were acquired through false representation. They submit that upon finding out, they brought this to the attention of the applicant who inter alia submitted various pleas to the first respondent one of which was a compassionate plea to the first respondent on 14 August 2015. What is striking about this plea, apart from providing details of numerous contributions made by the applicant in his professional and community life, is that the applicant admits that he “obtained citizenship by naturalization as a result of the marriage…” to Ms M[…]. This is, in my view, dispositive of any dispute there may have been in this regard.

Issues for determination

[28] What remains to be determined by this court is whether the decision to revoke the applicant’s citizenship is to be reviewed and set aside on the grounds alleged by the applicant.

Reasons for the deprivation of citizenship

[29] Section 8 of the Citizenship Act[15] empowers the Minister to deprive any citizen by naturalisation, of his/her citizenship if the Minister is satisfied that such citizenship was acquired by fraud, false representation or concealment of a material fact. It is not is dispute that the applicant made a false representation to the respondents.

[30] It was submitted on behalf of the applicant that while the applicant concedes that he is not a bachelor, at the time of making the

representation he believed that he was, as he had entered into a customary marriage in Nigeria. Mr Kotze, on behalf of the applicant,

stated that the applicant’s marriage to Ms Maseko was not a marriage of convenience and that there is no basis for the respondent’s contention that the marriage was part of a ‘mission’ to obtain citizenship as the relationship between them lasted for a total of 10 years. He stated that the decision is not only severe but also unreasonable, stating that the applicant has been rendered an undesirable person because of the impugned decision. It was contended that there are no grounds to allege that the applicant intentionally misrepresented his marital status to the respondents. The applicant relied on the decision in Tima v Minister of Home Affairs[16] where the court set aside the decision of the Minister of Home Affairs. While that matter concerns false statements made by the

applicant, the circumstances are distinguishable from the facts of the present matter. What is of relevance is that the court held that the Minister was enjoined to consider the false statements made by the applicant in the context of the totality of factors. In this matter the Minister’s reasoning and the underlying reasons for the decision are apparent from the Minister’s letter (the impugned decision). This is pertinent as it is not for this court to reconsider the decision of the first respondent. It is trite that the main question is whether the Minister erred in law in arriving at the said decision and whether his decision was “so unreasonable that no reasonable person” could have reached it. In Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another[17], Corbett JA stated:

“Broadly, in order to establish review grounds it must be shown that the (Minister) failed to apply his mind to the relevant issues in accordance with the ‘behests of the statute and the tenets of natural justice.’ … Such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the (Minister) misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the (Minister) was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated.”[18]

[31] A review is not a re-hearing of the matter which would lead to the court considering the decision of the Minister after the fact. The court is confined to the four corners of the decision. It was not alleged that the first respondent failed to apply his mind. Rather the application appears to be concerned inter alia about the severity of the sanction imposed by the Minister.

[32] On the contrary it was contended on behalf of the respondents that the applicant’s misrepresentation was deliberate. Mr Kunju,

submitted on behalf of the respondents that the applicant’s citizenship was a nullity, having been based on a permanent residence

permit which was obtained fraudulently by virtue of the fact that the underlying marriage which gave rise to it was null and void. The respondents rely on section 8 of the Citizenship Act[19] which states:

8. (1) The Minister may by order deprive any South African citizen by naturalisation of his or her South African citizenship if he or she is satisfied that –

(a) the certificate of naturalisation was obtained by means of fraud, false representation or the concealment of a material fact; …

(2) …

(3) Whenever the Minister deprives a person of his or her South African citizenship under this section or section 9 or 10, that person shall cease to be a South African citizen with effect from such date as the Minister may direct and thereupon the certificate of naturalisation or any other certificate issued under this Act in relation to the status of the person concerned, shall be surrendered to the Minister and cancelled, and any person who refuses or fails on demand to surrender any such certificate which he or she has in his or her possession, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

[33] Relying on Oudekraal[20], Mr Kunju stated that the decision of the Minister remains valid and must be put into effect. He added that there is no discrepancy

between the decisions taken by the respondents and that the respondents do not seek any self-review of their decision. I agree

with Mr Kunju that the application before the court is not one where the respondent seeks to review its own decision. Thus the decision of the respondents, whatever the parties perceive it to be, remains extant.

[34] As far as reliance on the Marriages Act goes, this was challenged by the applicant. Nothing much can be achieved by this challenge. The respondents also did not take the matter much further. In my view, this does not alter the reality of the issue; that any false statements are a matter of serious concern for the respondent as they should. The falsity of the statement made by the applicant is not in dispute. That statement set in motion a series of events culminating into the granting of citizenship by naturalisation. That is the basis of the respondents’ decision as it appears from the first respondent’s letter. In my view it cannot be faulted. The suggestion that the first respondent’s decision was procedurally unfair is also unfounded. It is unsurprising that no serious challenge was mounted by the applicant in this regard.

[35] The totality of factors lies in the applicant’s explanation for the false representation. I have in this judgment opted to set out in elaborate detail the applicant’s averments and reasons because in my view, they are contradictory. They do not

pass muster. In my view, they are disingenuous if not dishonest. They also represent what the applicant submitted for the respondents to consider in arriving at his decision. It is in such instances that the courts are called upon to exercise a level of deference.

Professor Hoexter in her article defines judicial deference as:

“ (the) judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; to accord their interpretations of fact and law due respect;

and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints

under which they operate. This type of deference is perfectly consistent with a concern for individual rights and a refusal to

tolerate corruption and maladministration. It ought to be shaped not by an unwillingness to scrutinize administration action,

but by a careful weighing up of the need for and the consequences of judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal.”[21]

[36] As the courts have previously stated, this is not to say that the courts should shy away from interfering with administrative decisions where such is called for within the prescripts of the law and indeed the Constitution, but should apply due consideration to the very tenets of the Constitution of which separation of powers is part.

Findings

[37] In spite of whether the applicant believed that he had entered into a customary marriage with Ms T[…], he was aware of the

existence of the marriage. He did not disclose this fact which was material to the conclusion of his marriage with Ms M[…], the granting of his permanent residence permit and exemption, and ultimately his citizenship. Not only did the applicant fail to

disclose his existing marriage during his subsequent marriage to Ms M[…] but in all his subsequent applications for even after he was married to Ms M[…], he remained married to Ms T[…] as well. The applicant has not disputed this fact, but provided reasons for his non- disclosure. I have already found that the applicant’s reasons were contradictory if not dishonest. He has been less than candid with the court. His response to the respondents on 14 September 2010 belies his contention that his application for citizenship was on any other basis than the fact that he was married to a South African citizen. In that letter the applicant categorically states that he “obtained permanent residence in the RSA by means of an exemption granted to him on 23 February 2003 on the basis that he was the spouse of a South African citizen, N[…] C[…] M[…]… to whom he got married on 19 December 2001.

[38] The applicant is a highly qualified member of the academic formations in this country and who by his own admission is of good and sound mind and an intellectual giant. It is therefore improbable that throughout his stay in the country and his various encounters

with immigration matters, he remained ignorant of the import of his non- disclosure. There appears to be no reason to interfere with the decision of the Minister in the circumstances. In the premises the application must fail.

Order

[39] In the result I make the following order:

(a) The applicant’s unreasonable delay in bringing this application in terms of section 7(1) of the of the Promotion of Administrative Justice Act is condoned.

(b) The application is dismissed with costs.

S. M. MFENYANA

ACTING JUDGE OF THE HIGH COURT

Counsel for the Applicant Adv. C. D Kotze

Instructed by: Clark Laing Incorporated c/o Hutton & Cook

Tel: 043 721 1556

Email: nontlahla@clarklaing.co.za

lee@huttco.co.za

Counsel for the Respondents Adv. V Kunju

Instructed by:

The State Attorney, East London 043 706 5100

Email: NoYako@justice.gov.za

Date heard:

13 February 2020

Date handed down: 28 May 2020

[1] Act 3 of 2000.

[2] Act 96 of 1991.

[3] Act 13 of 2002.

[4] [2010] ZASCA 3 (17 February 2010).

[5] At paragraph 54.

[6] United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) at page 720 F.

[7] 2010 (1) SA 333 (SCA)

[8] At para 33.

[9] Section 6(2)(e)(iii).

[10] Act 108 of 1996.

[11] (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004)

[12] at para 45

[13] Act 13 of 2002.

[14] Chapter 218 Laws of the Federation of Nigeria 1990: Section 33(1) reads: “No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married

under customary law to any person other than the person with whom such marriage is had.”

[14] Chapter 218 Laws of the Federation of Nigeria 1990: Section 33(1) reads:

“No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married

under customary law to any person other than the person with whom such marriage is had.”

[15] Ibid at n9

[16] (34392/2014) [2015] ZAGPPHC 763 (9 July 2015)

[17] 1988 (3) SA 132 (A).

[18] at 152A - D.

[19] Act 88 of 1995.

[20] 2010 (1) SA 333 (SCA).

[21] C Hoexter “The Future of Judicial Review in South African Administrative Law” (2000) 117 SA Law Journal 484 at 501-2.