Nwafor v Minister of Home Affairs and Others (66844/16) [2019] ZAGPPHC 571 (12 November 2019)
The court found that none of the points raised by the applicant in the application for leave to appeal had merit. The delegation issue was not properly raised in the review application and was introduced only in supplementary affidavits not before the court. The question of who took the decision, Minister or...
Source-derived case information.
- Citation
- [2019] ZAGPPHC 571
- Parties
- Applicant: Anthony Okey Nwafor; Respondent: Minister of Home Affairs; Respondent: Director-General: Home Affairs; Respondent: Department of Home Affairs
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 66844/16
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal After Judgment
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- S. Potterill
- Legal Topics
- Leave to Appeal, Principle of Legality, Delegation of Powers, Public Policy
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Okey Nwafor
Applicant
Minister of Home Affairs
Respondent
Director-General: Home Affairs
Respondent
Department of Home Affairs
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Judgment
Legal Issues
- 1 Whether new grounds not raised in the original review application can be considered on appeal.
- 2 Whether the decision was taken by the Minister or the Director-General and if proper delegation occurred.
- 3 Whether the abandonment of a previous judgment is against public policy.
Ratio Decidendi
The court found that none of the points raised by the applicant in the application for leave to appeal had merit. The delegation issue was not properly raised in the review application and was introduced only in supplementary affidavits not before the court. The question of who took the decision, Minister or Director-General, was not material as both could lawfully do so. The issue regarding the children’s citizenship was not raised in the review and cannot be considered for the first time on appeal; in any event, there was no evidence that section 18(2) of the Constitution was not complied with. The abandonment of the previous judgment was not against public policy, as a party is...
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The applicant is ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
Case Number: 66844/16
12/11/2019
In the matter between:
ANTHONY OKEY NWAFOR
Applicant
and
MINISTER OF HOME AFFAIRS
First Respondent
DIRECTOR-GENERAL: HOME AFFAIRS
Second Respondent
DEPARTMENT OF HOME AFFAIRS
Third Respondent
JUDGMENT
POTTERILL J
[1] Before me is an application for leave to appeal.
[2] In oral argument three main points with regard to why another court would come to another conclusion was raised.
[3] Reliance was placed on the principle of legality with relevance to the delegation point raised. The delegation point was not raised as a ground of review in the application, but in the supplementary affidavit not before court. In oral argument a new point was raised; who in fact took the decision, the Minister or the Director-General. A further point was taken that no documentary delegation was before court. This is once again a new point raised, not raised as a ground of review or canvassed before the court. No issue is taken with the court’s finding on whether the Minister could delegate the powers to the Director-General. The Director-General or the Minister could thus have taken the decision and this point has no merit, need not be addressed and is to be dismissed.
[4] The next point raised was also not raised as a review ground or argued in court before me. This point was that the children’s citizenship could not have been deprived. This new point cannot be raised on appeal for the first time and accordingly should be dismissed. In any event, no ground has been raised that section 18(2) of the Constitution has not been complied with in that the children are not without care or that they cannot follow the father’s citizenship.
[5] The further point raised was that the abandonment of Constantinides AJ’s judgment is against public policy. This point is laboured. A party can abandon a judgment and specifically a judgment that ruled that the matter was referred to oral evidence. It could never be against public policy to abandon such non-appealable judgment. The applicant chose as the dominus litis party not to utilise viva voce evidence, but to use the application procedure. In no way can this be contrary to public policy.
[6] I am satisfied that no other court will come to another conclusion and accordingly the application for leave to appeal is dismissed with costs.
S. POTTERILL
JUDGE OF THE HIGH COURT
CASE NO: 66844/16
HEARD ON: 8 November 2019
FOR THE APPLICANT: ADV. D. MPOFU SC
INSTRUCTED BY: Tshuketana Loselo Inc
FOR THE RESPONDENTS: ADV. M.H. MHAMBI
INSTRUCTED BY: State Attorney, Pretoria
DATE OF JUDGMENT: 12 November 2019