Ndlovu and Another v Director General: Department of Home Affairs and Another [2023] ZAGPPHC 551; 81327/2017 (11 July 2023)

Ndlovu and Another v Director General: Department of Home Affairs and Another [2023] ZAGPPHC 551; 81327/2017 (11 July 2023)

The court held that the respondents acted unlawfully by ignoring the first applicant's citizenship and declaring him an illegal immigrant and prohibited person without following the procedures set out in the Citizenship Act. The Immigration Act does not empower officials to deprive a person of citizenship or to disregard an administrative act granting citizenship. Even if the exemption certificate was fraudulently obtained, the administrative act remains valid until set aside by a court. The respondents' conduct amounted to self-help, which is prohibited under South African law. Furthermore, the respondents failed to provide adequate notice and procedural fairness as required by PAJA. The...

Citation
[2023] ZAGPPHC 551
Parties
Applicant: Kalani Ndlovu; Applicant: Nonhlanhla Maureen Ndlovu; Respondent: Director General: Department of Home Affairs; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 July 2023
Case Number
81327/2017
Procedural Posture
Review Application / Judgment
Outcome
Application for review upheld; all impugned decisions set aside.
Judges
NN Bam
Legal Topics
Review of Administrative Action, Procedural Fairness, Deprivation of Citizenship, Immigration Act Interpretation, Self Help by State
Administrative Law Civil Procedure Review of Administrative Action Procedural Fairness Deprivation of Citizenship Immigration Act Interpretation Self Help by State

Case Brief

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Parties

Kalani Ndlovu

Applicant

Nonhlanhla Maureen Ndlovu

Applicant

Director General: Department of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the respondents were authorised to declare the first applicant an illegal immigrant and prohibited person under the Immigration Act.
  2. 2 Whether the respondents could ignore the first applicant's citizenship without a court order setting aside the administrative act granting citizenship.
  3. 3 Whether the respondents' conduct in withdrawing citizenship and refusing identity documents was procedurally fair under PAJA.

Ratio Decidendi

The court held that the respondents acted unlawfully by ignoring the first applicant's citizenship and declaring him an illegal immigrant and prohibited person without following the procedures set out in the Citizenship Act. The Immigration Act does not empower officials to deprive a person of citizenship or to disregard an administrative act granting citizenship. Even if the exemption certificate was fraudulently obtained, the administrative act remains valid until set aside by a court. The respondents' conduct amounted to self-help, which is prohibited under South African law. Furthermore, the respondents failed to provide adequate notice and procedural fairness as required by PAJA. The...

Court Disposition

Application for review upheld; all impugned decisions set aside.

Orders

  • It is declared that the decisions by Mahlangu, Ledwaba, and/or the Director General declaring Ndlovu an illegal immigrant and/or prohibited person were unlawful and are set aside.
  • The decisions of the Director General and the Minister on review are set aside as they perpetuated the unlawful conduct.