Gondwe v Minister of Home Affairs and Others (197/2000) [2001] ZANWHC 6 (8 February 2001)
The applicant is currently a South African citizen as evidenced by his identity document, and there has been no lawful deprivation of his citizenship by the Minister of Home Affairs. The court cannot order his deportation while he retains citizenship. The merits of whether he should have been issued with such...
Source-derived case information.
- Citation
- [2001] ZANWHC 6
- Parties
- Applicant: Franklin Clement Gondwe; Respondent: Minister of Home Affairs; Respondent: Director-General for Home Affairs; Respondent: Regional Director North West Department of Home Affairs
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 197/2000
- Procedural Posture
- Urgent Application / Final Judgment After Rule Nisi and Argument
- Outcome
- Rule nisi confirmed only in respect of deportation; discharged in respect of all other prayers. Costs awarded to applicant.
- Judges
- Mogoeng
- Legal Topics
- Citizenship Deprivation, Deportation, Rule Nisi, Identity Documents
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franklin Clement Gondwe
Applicant
Minister of Home Affairs
Respondent
Director-General for Home Affairs
Respondent
Regional Director North West Department of Home Affairs
Respondent
Procedural Posture
Urgent Application / Final Judgment After Rule Nisi and Argument
Legal Issues
- 1 Whether the applicant, in possession of a South African identity document, can lawfully be deported without being deprived of citizenship under the law.
- 2 Whether the court can restrain the respondents from arresting or causing the applicant to be arrested.
- 3 Whether the court should declare the applicant to have a valid identity document and citizenship.
Ratio Decidendi
The applicant is currently a South African citizen as evidenced by his identity document, and there has been no lawful deprivation of his citizenship by the Minister of Home Affairs. The court cannot order his deportation while he retains citizenship. The merits of whether he should have been issued with such documents are irrelevant at this stage; only the Minister may investigate and decide on deprivation of citizenship. The court cannot restrain the respondents from arresting the applicant, as there may be reasonable grounds for arrest and the applicant failed to justify such an order. The court also declines to make a declaratory order regarding the applicant's citizenship, as this...
Court Disposition
Rule nisi confirmed only in respect of deportation; discharged in respect of all other prayers. Costs awarded to applicant.
Orders
- The rule nisi is confirmed only in respect of the deportation.
- The first respondent is to pay costs to the applicant, including costs consequent upon the employment of two counsel.
Full Case Text
Judgment text and source record
38 paragraphs
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 Applicantâs âremoval from the country as soon as possibleâ. 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 Applicantâs âremoval from the country as soon as possibleâ. 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 partiesâ 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 Respondentâs 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 partiesâ 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 Respondentâs 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 Applicantâs 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: â (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.â 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 Applicantâs 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:
â (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.â
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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