Gondwe v Minister of Home Affairs and Others (197/2000) [2001] ZANWHC 6 (8 February 2001)

CASE NO. 197/2000

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

FRANKLIN

CLEMENT GONDWE APPLICANT

and

THE MINISTER OF HOME AFFAIRS 1ST

RESPONDENT

THE DIRECTOR-GENERAL FOR HOME AFFAIRS 2ND

RESPONDENT

THE

REGIONAL DIRECTOR NORTH WEST

DEPARTMENT OF HOME AFFAIRS 3RD

RESPONDENT

______________

JUDGMENT

MOGOENG J.

[1] On 06 April 2000 the Applicant saw a letter directing the third Respondent to arrange for the Applicant’s ‘removal from the country as soon as possible’. It was signed by a certain W.C.S. Vorster on behalf of the second Respondent. On the next day, he applied for and was granted a rule nisi by Nkabinde J. The effect of the rule nisi was to: (a) restrain the Respondents from arresting or causing the Applicant to be arrested; (b) restrain the Respondents from deporting the Applicant from South Africa; and (c) declare that the Applicant has a valid identity document and is a citizen of the Republic of South Africa. [2] After numerous postponements, the matter was eventually argued on 30 November 2000 before me. I reserved judgment and this is the judgment and the reasons therefor.

[1] On 06 April 2000 the Applicant saw a letter directing the third Respondent to arrange for the Applicant’s ‘removal from the country as soon as possible’. It was signed by a certain W.C.S. Vorster on behalf of the second Respondent. On the next day, he applied for and was granted a rule nisi by Nkabinde J. The effect of the rule nisi was to:

(a) restrain the Respondents from arresting or causing the Applicant to be arrested;

(b) restrain the Respondents from deporting the Applicant from South Africa; and

(c) declare that the Applicant has a valid identity document and is a citizen of the Republic of South Africa.

[2] After numerous postponements, the matter was eventually argued on 30 November 2000 before me. I reserved judgment and this is the judgment and the reasons therefor.

[3] Each party advanced many reasons in support of his/her case. In the view that I take of this matter it is unnecessary to traverse all those reasons. What is central to this application is that the Applicant is presently in possession of an identity document that says that he is a citizen of the Republic of South Africa. He has neither renounced his citizenship nor has the first Respondent, or any official to whom the first Respondent may have delegated his power, deprived the Applicant of his citizenship in terms of the law. I asked counsel for the Respondents whether that crucial decision was taken. He replied that he did not have that information. The fundamental problem that I am confronted with is, therefore, that the Respondents were about to deport a citizen of this country as at the time when this application was launched. The merits or demerits of the parties’ cases as to whether or not the Applicant should have been issued with a birth certificate and identity document, which bear testimony to his citizenship, are irrelevant to me at this stage. They could be of relevance to the first Respondent in considering whether or not to deprive the Applicant of his citizenship. The South African Citizenship Act 88 of 1995 vests the power to deprive people of their citizenship in the first Respondent and not in this Court. This Court cannot usurp the first Respondent’s

power. The present position is that the Applicant is a South African citizen. The first Respondent would first have to deprive him of his citizenship before the Applicant may be deported. The Respondents cannot, therefore, deport him from South Africa for as long as he has not been lawfully deprived of his citizenship. I turn to the question whether the Respondents should be restrained from arresting or causing the Applicant to be arrested. [4] This Court cannot restrain the Respondents from either arresting or causing the Applicant to be arrested. There may well be reasonable grounds for arresting him. Besides, the Applicant has failed to explain why such a restraining order is necessary. Finally, I will deal with the prayer for an order declaring that the Applicant has a valid identity document and is a citizen of the Republic of South Africa.

[3] Each party advanced many reasons in support of his/her case. In the view that I take of this matter it is unnecessary to traverse all those reasons. What is central to this application is that the Applicant is presently in possession of an identity document that says that he is a citizen of the Republic of South Africa. He has neither renounced his citizenship nor has the first Respondent, or any official to whom the first Respondent may have delegated his power, deprived the Applicant of his citizenship in terms of the law. I asked counsel for the Respondents whether that crucial decision was taken. He replied that he did not have that information. The fundamental problem that I am confronted with is, therefore, that the Respondents were about to deport a citizen of this country as at the time when this application was launched. The merits or demerits of the parties’ cases as to whether or not the Applicant should have been issued with a birth certificate and identity document, which bear testimony to his citizenship, are irrelevant to me at this stage. They could be of relevance to the first Respondent in considering whether or not to deprive the Applicant of his citizenship. The South African Citizenship Act 88 of 1995 vests the power to deprive people of their citizenship in the first Respondent and not in this Court. This Court cannot usurp the first Respondent’s

power. The present position is that the Applicant is a South African citizen. The first Respondent would first have to deprive him of his citizenship before the Applicant may be deported. The Respondents cannot, therefore, deport him from South Africa for as long as he has not been lawfully deprived of his citizenship. I turn to the question whether the Respondents should be restrained from arresting or causing the Applicant to be arrested.

[4] This Court cannot restrain the Respondents from either arresting or causing the Applicant to be arrested. There may well be reasonable grounds for arresting him. Besides, the Applicant has failed to explain why such a restraining order is necessary. Finally, I will deal with the prayer for an order declaring that the Applicant has a valid identity document and is a citizen of the Republic of South Africa.

[5] Although the Applicant’s identity document shows that he is a citizen of South Africa, his citizenship has already been questioned. All processes necessary to investigate and deal with questionable citizenship must be left to unfold freely. It is open to the first Respondent to consider all the information at his disposal and to decide whether or not to deprive the Applicant of his citizenship, if this has not yet been done. This Court cannot ignore the allegations against the Applicant and make a declaratory order that may have the effect of preventing the first Respondent from exercising his powers should he wish to do so. [6] I therefore make the following order: “ (a) The rule nisi is confirmed only in respect of the deportation; (b) The first Respondent is to pay costs to the Applicant including costs consequent upon the employment of two counsel; (c) The rule nisi is discharged in respect of all the remaining prayers.” M.T.R.

MOGOENG

JUDGE OF

THE HIGH COURT

APPEARANCES DATE OF HEARING : 30 NOVEMBER 2000

DATE OF JUDGMENT : 08 FEBRUARY 2001 COUNSEL FOR APPLICANT : ADV L.C.J. MAREE SC (with him ADV R.D. HENDRICKS) COUNSEL FOR RESPONDENTS : ADV O.K. CHOARO ATTORNEYS FOR APPLICANT : TLHAPI &

MOOKELETSI ATTORNEYS FOR RESPONDENTS : THE STATE ATTORNEY

[5] Although the Applicant’s identity document shows that he is a citizen of South Africa, his citizenship has already been questioned. All processes necessary to investigate and deal with questionable citizenship must be left to unfold freely. It is open to the first Respondent to consider all the information at his disposal and to decide whether or not to deprive the Applicant of his citizenship, if this has not yet been done. This Court cannot ignore the allegations against the Applicant and make a declaratory order that may have the effect of preventing the first Respondent from exercising his powers should he wish to do so.

[6] I therefore make the following order:

“ (a) The rule nisi is confirmed only in respect of the deportation;

(b) The first Respondent is to pay costs to the Applicant including costs consequent upon the employment of two counsel;

(c) The rule nisi is discharged in respect of all the remaining prayers.”

M.T.R.

MOGOENG

JUDGE OF

THE HIGH COURT

APPEARANCES

DATE OF HEARING : 30 NOVEMBER 2000

DATE OF JUDGMENT : 08 FEBRUARY 2001

COUNSEL FOR APPLICANT : ADV L.C.J. MAREE SC (with him ADV R.D. HENDRICKS)

COUNSEL FOR RESPONDENTS : ADV O.K. CHOARO

ATTORNEYS FOR APPLICANT : TLHAPI &

MOOKELETSI

ATTORNEYS FOR RESPONDENTS : THE STATE ATTORNEY

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