Minister of Home Affairs and Another v Mahinga (A653/2017) [2020] ZAGPPHC 437 (12 August 2020)

REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A653/2017

In the matter between:

MINISTER OF HOME AFFAIRS

First

Appellant

DIRECTOR-GENERAL HOME AFFAIRS

Second Appellant

and

MBEMBA PIERRE MAHINGA Respondent

JUDGMENT

PHAHLANE, AJ

[1] This is an appeal against the order of this court granted by the Honourable Justice Sardiwall AJ (as he then was) on 8 September 2017. The appeal is with leave of the court a quo granted on 5 December 2017. The appellants duly filed the notice of appeal on 13 December 2017, but due to technical problems and the file being handled by different personnel at the office of the State Attorney, the appeal lapsed. At the commencement of the proceedings the appellants made an application seeking a relief to have the appeal which is deemed to have lapsed re-instated. After both parties presented their arguments and submissions, the court granted the application.

[2] The appeal is based on the following findings which are contended to be wrong in fact and/or law.

1. That the affidavit of Mr. Voster does not make up for the deficient documentary evidence necessary to support the allegation made against the respondent

2. That the affidavit of Mr Voster is inadmissible because it is hearsay

3. That the Minister’s decision that the marriage was not a good spousal marriage was not rational in the circumstances.

4. That the information which formed the basis of the Minister’s decision was not placed before the court.

5. That there exists no plausible explanation to justify the revocation of the respondent’s citizenship

6. The bona fides of the Minister in taking the decision was unjustified and improbable.

7. That the decision of the applicants was not substantively fair.

[3] The genesis of the facts which led to this appeal are as follows:-

The respondent is a Congolese national who became naturalized by virtue of his marriage to a South African citizen, Ms Mfuku. On 15 April 2016 the respondent who was in the employ of the Department of Home Affairs (“DHA”) holding the position of Assistant Director:- Asylum Seeker Management was notified of the first appellant’s (“the Minister”) intention to deprive him of his South African Citizenship on account that it was obtained unlawfully by fraudulent means, false representation or concealment of a material fact and therefore in contravention of the provisions of the Citizenship Act. Following this notice, on 10 June 2016, the respondent’s citizenship was revoked, and his employment was terminated by the Minister.

[4] Thereafter the respondent approached the court for a review of the Minister’s decision which was exercised in terms of section 8 (1) of the Citizenship Act 88 of 1995 (‘the Act”). The review court held that the Minister’s reasons to deprive the respondent of his South African citizenship did not justify his decision. The Minister’s decision was found to be substantively unfair and was as such set aside. It is against this order that the appellants are seeking a relief from the appeal court, to set aside this entire judgment of the review court.

[5] As a court of appeal, this court must determine whether the decision of the court a quo in setting aside the decision of the Minister was correct and justified. The respondent contended that the Minister did not have the legal authority, in the absence of a finding of the court of law, to rescind the prior decision of the former Minister that was taken on 1 October 2003 granting him citizenship. He contended further that the Minister did not act rationally when he revoked his citizenship.

[6] It is not in dispute that the Minister’s decision to revoke citizenship of the respondent was based on the results of the investigations conducted by Mr Willem Voster that the respondent’s marriage to Ms Mfuku was fraudulent. It is also not in dispute that the records of the respondent pertaining to his asylum application at the DHA and other related documents, had been lost at the offices of the DHA. Mr Voster deposed to an affidavit[1] in respect thereto, and such affidavit was rejected by the court a quo as inadmissible, holding that the affidavit did not make up for deficient documentary evidence to substantiate the allegation that the respondent’s marriage to Ms Mfuku was fraudulent. In that regard, the court a quo held that the respondent was never investigated during the existence of his alleged fraudulent marriage, until he applied for the position of Deputy Director Integrated Management and Support even though the DHA had the power to do so in terms of section 26 and the Regulations published in accordance with section 7 of the Act.

[7] While the respondent maintains that he was never informed that he was being investigated, the court a quo stated that: “failure by the DHA to investigate the respondent’s ‘fraudulent marriage’ to Ms Mfuku but

only realized eight years after their divorce that their marriage was fraudulent and the respondent’s citizenship was fraudulent, - creates a great suspicion on the intention of the Minister, especially with lack of documentary evidence to support the allegation on which the decision to deprive the respondent of his citizenship and subsequent dismissal from the DHA is based”. In this regard, the court a quo referred Regulation 33 (5) which provides that:

"(5) The Department may at any time satisfy itself as envisaged in section 26(b)(i) of the Act whether a good faith spousal relationship exists by (a) interviewing the applicant and spouse separately; (b) contacting family members and verifying other references; (c) requesting proof of actual or intended cohabitation; and/ or (d) inspection in loco of the applicant's place of residence."

[8] It may very well be that the DHA only conducted an investigation on the respondent when he applied for a higher position within the department, however, the wording of the Regulation does not prescribe the timeframe or put a limit to the time when an investigation should be conducted. On the same token, save to say that he was not informed of the investigations against

him, the respondent does not state whether the Minister was legally obliged to inform him of such investigation and under what provisions of the law.

[9] In holding that the Minister’s decision was not rational, the court a quo stated as follows: “It was never alleged nor proofed by DHA that the applicant and Ms Mfuku did not cohabit as required in terms of the Regulations defining a bona fide spousal relationship”.

[33] The Minister’s decision and the reasons therefore based on the investigation by DCCS, in my view is not sufficient to justify a decision to revoke the Applicant’s citizenship. The information which forms the basis of the Minister’s decision has not been placed before this court, with the untenable explanation that the documents are missing and/or destroyed without any explanation. There is no plausible explanation that I can rely on to justify the revocation of the Applicant’s citizenship and subsequent termination of employment. The bona fides of the Respondents in taking this decision is clouded with suspicion and

improbable”.

[10] The court a quo relied on the decision in Khoza v Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government[2]. This case relates to traces of data information in the CTG machine that was used in monitoring the foetal heart-beat rate of a foetus in distress as a result of insufficient oxygenated blood supply to the foetal brain. By relying on this judgment, the court a quo committed a material error of law when it applied the principles of the case which are distinguishable and not applicable to the facts before court. I am of the view that the court a quo misdirected itself in finding that the Minister based his decision to revoke the respondent’s citizenship on the facts which were never verified.

[11] Having said that, the administrative decision taken by the Minister was taken pursuant to the powers conferred upon him by section 8 (1) of the Act. The section provides as follows:

Deprivation of citizenship

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; or

(b) Such certificate was granted in conflict with the provisions of this Act or any prior law.

[12] Counsel argued on behalf of the appellants that the Minister exercised his discretionary powers in terms of section 8 of the Act and was thus entitled to deprive the respondent of his citizenship. Counsel insisted that there is no time frame as to when revocation can be done, indicating that, - as and when the information is received by the Minister, the Minister can revoke citizenship.

[13] As indicated above, the respondent contended that the Minister did not have the legal authority, in the absence of a finding of the court of law, to revoke his citizenship. It was further argued on behalf of the respondent that granting a Certificate of Naturalisation granted to the respondent on 01 October 2003, shows that the DHA was satisfied that the respondent was on the

clear and therefore qualified to receive citizenship which should never have been revoked. In this regard, the responded submitted that lack of the Minister’s authority in revoking his citizenship infringed on his right to citizenship which is protected by the constitution.

[14] This submission in my view is misplaced. There is nothing in the Act which constrains the definition of the word “order” to mean a “court order”. The Oxford English Dictionary and Collins English Dictionary defines the word “order” as: “something or someone in authority, orders something, or giving an instruction that something should be done”.

[15] The word simply means that the Minister make a Ministerial determination to deprive an individual of his or her citizenship. On the other hand, section 8 does not provide the time frame as to when citizenship by naturalisation may be deprived

or terminated by the Minister. It follows that there is also no time restriction placed on the Minister to conduct an investigation in order to make a decision whether to terminate or not. It is however clear from the wording of the section that the provision was intended to confer a discretion upon the Minister to make a decision in the light of the information at his disposal.

[16] It is common cause that there is a dispute of fact and accordingly, the Plascon-Evans[3] rule is applicable. It appears on record that before the Minister could make a decision to revoke citizenship, he addressed issues of concern to the respondent. It is not in dispute that the respondent failed to respond to the issues raised by the Minister in

a letter addressed to the respondent dated 23 May 2016 in which the Minister stated that the respondent has not addressed the allegations

placed before him in the letter dated 15 April 2016. The respondent failed to deal with, and respond to the issues raised

regarding his marriage being illegal and his entry into the country.

[17] In summation, some of the issues of concern raised by the Minister were as follows:

1. The respondent stated that he arrived in South Africa on 17 February 1996 and did not have any documentation at the time, save for a press card which he held from working as a reporter during his last year of studying journalism in Kinshasa, DRC. He stated that he entered South Africa via Namibia.

2. The minister’s investigations revealed that the respondent entered South Africa on 5 January 1996. What is referred to as The Movement Control System of the DHA shows that the respondent entered South Africa on 5 January 1996 from the DRC. He was a passenger on a flight SA051 and arrived at the then Johannesburg International Airport on this day. A terminal printout relating to this information is attached on the papers before court.

3. He was granted temporary permit to work in the media industry for a month until 5 February 1996, but he did not leave the country on this date.

4. By his own version, between the period July 1998 and August 2000, he worked as a Senior Administrative Officer at the Embassy of the DRC, which is the country from which he purported to have fled because he was afraid of being persecuted.

5. He only applied for refugee status on 26 November 1998 at the then Braamfontein Refugee Reception Office.

6. On the version of the Minister, on 10 December 1999 the respondent applied for asylum permit which he abandoned, but this is disputed by the respondent.

[18] The above issues including what the Minister refers to as a marriage of convenience, are some of the concerns which the Minister raised with the respondent and the respondent never responded thereto. It therefore appears that on the objective facts, it is as a result of this failure to respond, that the Minister took a decision to revoke the respondent’s citizenship. The fact that the respondent’s marriage to Mfuku was a marriage of convenience, on the version of the Minister, must in terms of the Plascon-Evans rule be accepted.

[19] The doctrine of legality forms part of our law and requires that public officials or State functionaries should act lawfully, and their decisions should be contained by law. They can perform no function and exercise no power other than that conferred on them by law[4]. The Minister was in my view, exercising his discretionary powers when he took a decision to revoke the respondent’s citizenship.

[20] The Supreme Court of Appeal in MEC for Environmental Affairs and Development Planning v Clairison’s CC[5] stated that:

“………..When the law entrusts a functionary with a discretion, it means just that. The law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted and is not open to the court to second guess his evaluation. The role of a court is no more than to ensure that a decision maker has performed the function with which he was entrusted”.

[21] Constitutional court In Electronic Media Network Limited and Others v Etv Limited and Others[6] stated that:

“[1] Our is a constitutional democracy, not a judiocracy. And in consonance with the principle of separation of powers, the national legislative authority of the Republic is vested in Parliament, whereas the judicial and the executive authority of the Republic repose in the Judiciary and the executive respectively. Each arm enjoys functional independence in the exercise of its powers. Alive to this arrangement, all three must always caution themselves against intruding into the constitutionally assigned operational space of the others, save where the encroachment is unavoidable and constitutionally permissible.

[4] Driven by this reality, we were constrained to sound the following sobering reminder:

“The Judiciary is but one of the three branches of government. It does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independence of other branches of government. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved. At the same time, and mindful of the vital strictures of their powers, they must be on high alert against

impermissible encroachment on the powers of the other arms of government”.

This court referred to Economic Freedom Fighters v Speaker of the National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at para 92 where the court stated that:

“The Judiciary is but one of the three branches of government. It does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independence of other branches of government. It was with this in mind that this Court noted:

“Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution. But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament”.

[22] Having given proper and due consideration to all the circumstances, we are of the view that the decision of the court a quo to set aside the decision of the Minister was wrong and should be overturned.

[23] In the circumstances, the following order is made:

1. The appeal is upheld

2. The order of the court a quo is set aside and substituted with the following order:

2.1 “The review application is dismissed with costs.

2.2 The costs shall include the costs of two counsel”

PD. PHAHLANE AJ

ACTING JUDGE OF THE HIGH COURT

I agree,

TAN MAKHUBELE J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

I agree, and it is so ordered

T.A. MAUMELA J

APPEARANCES

For Appellants : Adv N.A. CASSIM SC

Instructed by : THE STATE ATTORNEY, PRETORIA

Tel: (012) 309-1567

Email: WMotsepe@justice.gov.za

For Respondent : Adv L. MFAZI

Adv T. TSHABALALA

Instructed by : Z & Z NGOGODO INC

WATERFALL PARK, MIDRAND

Tel: (011) 028-1258

Email: mpho@ngolawjhb.co.za

info@ngogodoinc.co.za

Date of hearing : 19 February 2020

Judgment delivered : 12 August 2020

[1] Affidavit in terms of section 212 of the Criminal Procedure Act 51 of 1977

[2] (2012/20087) [2015] ZAGPJHC 15; 2015 (3) SA 266 (GJ); [2015] 2 All SA 598 (GJ) (6 February 2015)

[3] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

[4] Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC).

[5] (408/2012) [2013] ZASCA 82 (31 May 2013); 2013 (6) SA 235 (SCA) at para 18.

[6] [2017] ZACC 17; 2017 (9) BCLR 1108 (C) at para 1 and 4