Mulowayi and Others v Minister of Home Affairs and Another (CCT249/18) [2019] ZACC 1; 2019 (4) BCLR 496 (CC) (29 January 2019)

Mulowayi and Others v Minister of Home Affairs and Another (CCT249/18) [2019] ZACC 1; 2019 (4) BCLR 496 (CC) (29 January 2019)

The Constitutional Court held that declarations of invalidity concerning regulations are not subject to confirmation by the Court. The High Court erred in suspending its declaration of invalidity of regulation 3(2)(a), as such suspension is unnecessary and perpetuates the applicants' statelessness. The regulation was ultra vires the empowering statute, which prescribes a five-year residency requirement, not ten years. The applicants are entitled to effective relief, and the suspension order must be set aside. Condonation and leave to appeal were granted in the interests of justice, given the prejudice to the applicants and their minor child.

Citation
[2019] ZACC 1
Parties
Applicant: Florette Kayamba Mulowayi; Applicant: Nsongoni Jacques Mulowayi; Applicant: Gaddiel Mutamba Mubenishibwa Mulowayi; Respondent: Minister of Home Affairs; Respondent: Director-General of the Department of Home Affairs
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
29 January 2019
Case Number
CCT 249/18
Procedural Posture
Constitutional Appeal / Appeal From High Court; Application for Confirmation and Leave to Appeal
Outcome
Appeal upheld; High Court's suspension order set aside; no order as to costs.
Judges
Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Petse, Theron
Legal Topics
Citizenship by Naturalisation, Ultra Vires Regulation, Statelessness, Child Rights, Promotion of Administrative Justice Act
Constitutional Law Administrative Law Citizenship by Naturalisation Ultra Vires Regulation Statelessness Child Rights Promotion of Administrative Justice Act

Case Brief

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Parties

Florette Kayamba Mulowayi

Applicant

Nsongoni Jacques Mulowayi

Applicant

Gaddiel Mutamba Mubenishibwa Mulowayi

Applicant

Minister of Home Affairs

Respondent

Director-General of the Department of Home Affairs

Respondent

Procedural Posture

Constitutional Appeal / Appeal From High Court; Application for Confirmation and Leave to Appeal

Legal Issues

  1. 1 Whether the High Court's declaration of invalidity of regulation 3(2)(a) of the Regulations on the South African Citizenship Act, 1995 requires confirmation by the Constitutional Court.
  2. 2 Whether the High Court erred in suspending the declaration of invalidity of regulation 3(2)(a).
  3. 3 Whether the applicants are entitled to effective relief given their statelessness and the impact on their minor child.

Ratio Decidendi

The Constitutional Court held that declarations of invalidity concerning regulations are not subject to confirmation by the Court. The High Court erred in suspending its declaration of invalidity of regulation 3(2)(a), as such suspension is unnecessary and perpetuates the applicants' statelessness. The regulation was ultra vires the empowering statute, which prescribes a five-year residency requirement, not ten years. The applicants are entitled to effective relief, and the suspension order must be set aside. Condonation and leave to appeal were granted in the interests of justice, given the prejudice to the applicants and their minor child.

Court Disposition

Appeal upheld; High Court's suspension order set aside; no order as to costs.

Orders

  • Condonation is granted.
  • The application for confirmation of the declaration of invalidity of regulation 3(2)(a) is refused as superfluous.