Archive from February, 2020

Concourt brings relief to children of foreign parents

If you were born in South Africa to non-citizens you can apply to be a citizen

Minister of Home Affairs Aaron Motsoaledi. The Concourt was unimpressed by his department’s handling of applications for citizenship by children born to foreign parents. Archive photo: Tariro Washinyira
It has taken four years of legal battles, but now if you were born in South Africa to foreign parents you can apply for citizenship.
It has been an “agonizing journey” for those who consider South Africa to be their only home.
The Department of Home Affairs opposition to the court bid by five adults, representing others in a similar situation, for the vindication of their rights, was dealt a death blow by the Constitutional Court last week. The court simply ruled that it would not hear any further argument on the matter.
The department had not filed its papers in time, and it had not given good reason for this.
What this means for Mariam Ali, Aden Salih, Kanu Nkololo, Caroline Masuki, Murphy Nganga and any others “similarly situated” is that their previous victory in the Supreme Court of Appeal (SCA) now stands.
In terms of that order, the minister must accept their applications for citizenship and make a decision within ten days.
The SCA declared that if you were born in South Africa to foreign parents who have not been admitted as permanent residents, you qualify to apply for South African citizenship upon becoming a major if your birth was registered and if you have lived here all your life, irrespective of the date of your birth.
It also ordered the minister to enact the necessary forms to allow for such applications within one year. Pending this, he must accept applications on affidavit.
The application, brought with the assistance of the Legal Resources Centre (LRC), was first set down in the Western Cape High Court.
It was argued that the centre’s clients had all complied with the Citizenship Amendment Act which came into effect in January 2013. They were all born in South Africa to foreign parents and they had all turned 18. But their applications for citizenship under naturalisation laws were being refused.
In fact, they said, they were being told that such an application form did not even exist.
In that court, the minister argued that the act only applied to children born after January 2013 and could not be applied retrospectively. In fact, his lawyers argued, it did not even apply to children who turned 18 after that date but only to children born after that date.
Any retrospective application would create “an unnecessary flow of applications and burden the already strained resources of the department”.
The Western Cape High Court ruling in favour of the centre’s clients was taken on appeal to the SCA by the minister.
There, the Home Affairs changed its argument. Retrospectivity was no longer an issue.
Instead, it was argued that those affected should have put the minister on terms to deal with their applications and, if they were refused, they could then launch court proceedings to review and set aside the decisions.
“But this was untenable,” the judges said. “It is difficult to understand on what basis the minister could have made any decision. They were never given an opportunity to apply. They were just turned away.
“The argument is consistent with the ongoing attempts to frustrate and delay their application. It is not in the interests of justice to send them from pillar to post simply because the minister adopted a supine attitude that the regulations will only be promulgated in due course.”
They were being treated unfairly, the court ruled, dismissing the appeal.
Sherylle Dass, LRC Regional Director, Cape Town, said they had opposed the state’s application for leave to appeal to the Constitutional Court, saying it was an attempt to have a “second bite of the cherry” in spite of conceding the bulk of their submissions in the lower courts.
“Despite these concessions, some ten months later, the state decided to change its stance. We believed it was an abuse of process. They plainly had no reasonable prospects of success and again it showed a total disregard for taxpayers who have to foot the bill for these types of vexatious proceedings.”
She said that during those ten months, when there was no indication of any appeal, the clients had submitted their citizenship applications but they were not dealt with.
“Following the dismissal of their appeal, we will now be demanding the adjudication of those citizenship applications and we will approach the courts if necessary should a decision not be made within ten days in accordance with the SCA ruling.
“Our clients have had to endure a long and painful journey to obtain citizenship with some of them all but giving up hope of being finally accepted by a country they have grown to love; the only country they have called home.
“A large part of this agonizing journey could have been avoided if decision-makers within the Department of Home Affairs exercised reason and caution by not arbitrarily abusing the court processes to delay and frustrate the exercise of the clear and unequivocal right of these applicants.”

Citizenship case reveals chaos at Home Affairs as it battles 8,000 lawsuits

A case brought before court on behalf of a group of stateless people, claiming that they lost their South African citizenship by descent when the law was changed, has revealed absolute chaos at the Department of Home Affairs, which had to send a heavyweight legal team to the Constitutional Court on 13 February 2020 to plea for permission to have another chance to overturn a court order they claim will open the floodgates to millions of people who want citizenship to access grants.
From being too busy to blaming an intern to citing workloads and wrong advice being given, the Department of Home Affairs filled pages with explanations, and apologies in papers filed before the Constitutional Court explaining why they didn’t file papers in two years, in a case they now claim will “open the floodgates”, for people wishing to gain South African citizenship to access government grants.
On Thursday, 13 February 2020, the Constitutional Court heard an application by Lawyers for Human Rights to confirm an order by the Pretoria High Court that parts of the South African Citizen Act were unconstitutional as it fails to recognise citizenship acquired by descent in terms of the previous legislation.
The organisation represents a group of people, all born outside of South Africa to a South African parent. They all claim to have been deprived of their citizenship when the legislation was changed and that this left them stateless as their births were not registered in time – but the law afforded citizenship to them because one of their parents was South African.
The new law took this citizenship away because their births were not registered before 2013 when the law changed – as the new law, as described by attorney Liesl Muller in papers before court, put them in an unintentional “no man’s land”.
The four applicants are Yamikani Vusi Chisuse, 30, Martin Ambrose Hoffman, 49, a 12-year old child and Amanda Tilma, 50. The department denies in papers before court that they will qualify for citizenship even if their citizenship by descent is reinstated by a court order, saying that there are factual discrepancies in their versions.
Lawyers representing the group first approached the Pretoria High Court in September 2016. The matter was set down for a hearing on May 2017, but home affairs failed to file an affidavit explaining their position. They did indicate that the matter will be opposed. The matter was postponed and the department was ordered to file their papers within 20 days. This wasn’t done.
Two years went by. When Lawyers for Human Rights finally set the matter down for hearing, the department asked the court for a postponement to file their affidavit. This was refused and the court heard the matter unopposed. This led to parts of the South African Citizen Act being declared unconstitutional and the court ordering that four of the applicants be given citizenship.
In an affidavit explaining their shocking handling of the matter filed before the Constitutional Court, the acting director-general for home affairs, Thulani Mavuso apologised to the court for their handling of the matter, but asked the court to overturn the order of the Pretoria High Court to send the matter back to hear evidence.
Mavuso, the acting director-general of the department, said they are now confronted by between 8,000 and 10,000 cases in courts all over the country and receive 150 new cases a week. He said their directorate of litigation only has five members and each needs to handle 1,200 cases. “This workload makes it practically impossible to perform the services with the efficiency required. This is due to budgetary constraints in government,” he said.
He said he didn’t even know about the case before the Pretoria High Court.
“I accept that the matter has not been dealt with properly by officials of the department. On that score, the conduct of the officials failed not only this court, but the applicants and society at large. I accept that the state respondents and the state attorney handled the matter in the most inefficient and ineffective manner. This conduct undermines the legitimacy of both the judiciary and the state.”
He said they accepted that the rights of the applicants in the current case were “openly violated”, by the department and showed disdain for the law. “I concede this is unacceptable.”
He said for the court to allow the applicants to claim citizenship by descent will be “an insult to the Black South Africans and architects of the Constitution of the Republic of South Africa”, and have a disastrous effect on the country’s stability.
“The Citizenship Amendment Act seeks to put a final nail on the racist, sexist and discriminatory 1949 Act and to correct the legislative anomalies of the 1995 Act. The surviving provision of the 1949 Act, which allowed children of foreigners to claim citizenship of South Africa under the 1949 Act, had disastrous consequences for the stable and democratic citizenship regime in South Africa. Moreover, the relevant provision of the 1995 Act, which entrenched the 1949 Act, opened the floodgates for the foreigners to claim citizenship in order to access the privileges and benefits flowing therefrom. It is estimated that there are approximately 17-million grant beneficiaries as opposed to 15.5-million taxpayers in South Africa,” he added.
He said allowing foreign persons who desire to live and work in South Africa to claim citizenship by descent may lead to uncontrolled fraudulent citizenship.
“This is precisely the mischief the legislature intended to address when it amended the 1995 Citizenship Act. South Africa is today a great place to live in and many people in the world aspire to live, work, or to be the citizens of South Africa. As a result, many foreign nationals come to South Africa and stay in the country illegally. No one can account for every undocumented migrant,” he added. “The department has no idea how many illegal immigrants are in South Africa.”
The applicants before court were born to South African parents in Malawi, Zimbabwe and Ghana before legislation changed, but their births were not registered.
According to Mavuso, they originally only realised that there was a case about this issue when one of their officials raised a concern over a cost order made against the department. He said the notice of the hearing was served on an intern and nothing was done about it.
He admitted that they received correspondence warning that the matter will be set down on the unopposed role unless an affidavit is filed. He said a few months after they defaulted on filing an affidavit, the department’s junior counsel and the state attorney were called into the deputy judge president’s chambers and “severely reprimanded”. He said they were ordered to file an affidavit within a month.
Mavuso explained that as part of their internal procedures, they still had to interview the applicants as part of their internal process, but officials couldn’t do it in time. The applicants were then asked to come to home affairs to have their births registered and the matter should be removed from the role. This was erroneous advice he said, but nothing happened in any case and their affidavit was also not filed in accordance with the court’s directive.
He said when the order declaring parts of the law unconstitutional was served, the official dealing with the matter was on leave. She only returned 15 days later. He said the director of litigation also resigned six months later. “This had a negative impact on most of the matters in which he was involved.”
“The attorney of record is currently handling almost 700 pending cases. This, however, cannot be an excuse for the conduct of the state attorney and officials of the DHA in this matter.”
In papers before the Constitutional Court, Advocate Isabel Goodman, acting for the applicants, explained that the case dealt with citizenship by descent.
She added that the applicants acquired a right to citizenship by virtue of their parenthood, but because of changes between the various statutes, they have been deprived of their right and ability to acquire citizenship, and the problem was that the law did not preserve citizenship acquired by descent under predecessor legislation. “The section only saves citizenship acquired by birth. Those who acquired citizenship by parenthood under predecessor legislation are, overnight, no longer citizens.”
She argued that the department could not offer any real justification for these infringements and added that, in fact, they didn’t even bother to file an affidavit despite a two-year delay and an order directing it to do so.
A four-person legal team led by advocate Seth Nthai SC argued on behalf of the department that none of the legislation conferred an automatic right to citizenship. He added that the law does not apply retrospectively. He said if the court believed the laws to be unconstitutional, the law should be sent back to Parliament for an amendment in line with the current policy considerations.
The Constitutional Court has reserved judgement. MC

Marriage fraudsters could have their citizenship revoked

Marriages of convenience, which are mostly used by foreigners to gain SA citizenship will become a “dangerous game” to play in future, warns home affairs minister Aaron Motsoaledi.
While the country has become a haven for bogus marriages Motsoaledi said a proposed new marriage statute will make it “very difficult” to marry someone in absentia, which is currently the main driver of the country’s fake marriages.
So serious is he about stopping fraudulent marriages that his office has started revoking the citizenship of those found to have forged their unions.
“We are now handling a very difficult case of somebody who got married and after getting citizenship he got divorced and went home to fetch the ‘real’ wife. So we are taking his citizenship away. But he is resisting and says that we are evil as we found out about his fake marriages after a long time. So he is threatening to go to court,” he said.
Between April 2018 and June 2019 Motsoaledi said there were more than 2,000 fraudulent marriages, almost all involving foreign nationals. About 1,100 had since been annulled while more than 600 were referred to courts to be dissolved through divorce.
Speaking to TimesLIVE at the Valentine’s Day mass wedding at Robben Island on Friday, Motsoaledi said young women were often victims of these undesirable marriages, enticed with money.
“Young women who need money for their nails, hair and cellphones are usually caught up in these marriages. Some of the girls do it knowingly that they don’t want this marriage, but they do it anyway knowing that they will just discard it. But the new marriage policy will be very clear and have measures in place to minimise occurrence of these marriages of convenience. Those who think that getting married is a game will realise that it’s a dangerous game,” he said.
The proposed single marriage law, which is currently being investigated by the SA Law Reform Commission, seeks to give everyone equal rights, regardless of their religious and cultural background. The new statute will replace the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998 and the Civil Union Act of 2006.
The commission is considering either a single act with a unified set of requirements, or an “omnibus option” reflecting the current diverse set of legal requirements and consequences of civil, religious and customary marriages and civil unions.
It is also looking into consent and capacity to marry, minimum age, the issuing of marriage licences and marriage ceremonies. It will also look into spousal support, antenuptial agreements, cohabitation rights, dispute resolution in family matters and bogus marriages.
Motsoaledi said one of the weaknesses of the current law was that it allowed one person to register a marriage alone, as long they had the required documents.
“In the new law we will require them to come together. Some of the women end up getting married unknowingly because they had their documents stolen. So we want both of them to appear together,” he said.
The new law is expected to come into effect in 2021.
Marriage officers will also be trained to look out for red flags in potential bogus marriages. In cases of foreigners marrying across the border, countries of origin will also be consulted to check the marital status of marriage applicants.
“So in the proposed law it’s going to be a little bit tough. We are going to demand some information from the countries of origin that you are actually not married. We will train marriage officers to understand the implications of marrying across the borders. People take marriages like a game … that I will just marry and annul. But that game will now become a very dangerous one to play,” he said.
Motsoaledi said under the new marriage regime teenage marriages will not be tolerated. Statistics from the department of social development show that in 2016 there were 103 teenage divorces and in 2017 there were about 73.
Currently parents are allowed to give their daughter’s hand in marriage even if they are underage.
“There are about 14,600 ministers of religion and 1,400 home affairs officers. All of them will be instructed about this. Even if you go to them as a teen they will tell you that I’m sorry I won’t allow you,” said Motsoaledi.

Home Affairs Minister Motsoaledi on tougher new laws for refugees in SA

Foreign refugees in South Africa have just been banned from political activity – as SA builds ‘a paper wall’ against immigration

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Zim transgender asylum-seeker wins SA High Court appeal

A Zimbabwean transgender woman has successfully won her appeal at the South African High Court, stopping that country’s immigration department from deporting her.
The High Court ordered her release from detention, stopped her deportation and ruled she could approach the Refugee Centre to submit her application for asylum.
The court order also ordered the Ministry of Justice and Correctional Services and the Director of Public Prosecutions: Gauteng Local Division and National Prosecution Authority to pay the costs of the applicant’s application.
The applicant, Emily Musimwa, was remanded in custody by the Hillbrow Magistrate Court in January pending trial (February 17, 2020) for violating Section 49 of the Immigration Act.
She then approached the High Court to seek recourse, having already spent two weeks in prison.
Her lawyer, Dr Vusumuzi Sibanda argued Musimwa sought asylum because Zimbabwean laws are unkind to the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community and she could not be deported to Zimbabwe without approaching the refugee centre.
On February 12, 2020, at the High Court of South Africa: Gauteng Local Division in Johannesburg, Judge Kathree-Setiloane, ordered the Ministry of Justice and Correctional Services, the Director of Public Prosecutions: Gauteng Local Division and National Prosecution Authority, the Chief Director: Asylum Seeker Management DHA and the Minister of Home Affairs, cited at the first, second, third and fourth respondents to release Musimwa forthwith.
“It is ordered that in terms of Regulation 2(2) of the Refugees Regulations, the applicant is entitled to remain lawfully in the Republic of South Africa for a period of 14 days in order to allow her to approach the Refugee Reception Office to submit her application for asylum,” read the high court order.
The Director of Public Prosecutions: Gauteng Local Division and National Prosecution Authority and the Minister of Home Affairs were “hereby interdicted from detaining criminally charging and or deporting the applicant in terms of the Immigration Act 13 of 2002 until her status under the Refugees Act 130 of 1998 has been lawfully and finally determined by the Refugees Determination Office.”
Judge Setiloane also ordered the Chief Director: Asylum Seeker Management DHA and Minister of Home Affairs to immediately issue Musimwa with a permit contemplated in Section 22 of the Refugees Act 130 of 1998 read together with Regulation 2(2) of the Refugees Regulations.
“The first and the second respondent are ordered to pay the costs of this application including the wasted cost on February 11, 2019, jointly and severally, the one paying the other to be absolved,” said the high court order.
Musimwa’s lawyer said she was “never supposed to stay in custody and the court was supposed to release her the day we appeared (that was January 22, 2020) because the law is clear on that for claimants to the asylum system. The Magistrate (at (Hillbrow Magistrate Court) failed to apply the law and neglected the rights of Ms Emily Musimwa,” said Dr Sibanda.

South Africa: Asylum Seeker Wins Right to Marry

The Supreme Court of Appeal has declared Home Affairs’s prohibition on asylum seekers marrying unconstitutional
If you are an asylum seeker whose application for asylum in terms of Section 21 of the Refugee Act has not been finalised, you are still permitted to enter into a marriage. The Supreme Court of Appeal (SCA) affirmed this in a judgment handed down in October.
A case was brought by asylum seeker Emmanuel Ochogwu, whose application for refugee status has been pending with the Refugee Appeal Board for over six years. He is a Christian pastor who fled the religious persecution of Boko Haram in Nigeria.
During the prolonged delay in finalising his application, Ochogwu formed a relationship with Zizipho Nkumanda. The two married in terms of customary law. In 2016, they approached Home Affairs to register their customary marriage in terms of the Recognition of Customary Marriages Act and conclude a civil marriage under the Marriage Act. This is a practice commonly adopted by customary law spouses to ensure full legal recognition of their union.
The parties were asked to prove the existence of the customary marriage and provide Ochogwu’s asylum permit for verification. They complied, providing an affidavit from Nkumanda’s father, confirming the conclusion of a customary marriage and Ochogwu’s latest asylum seeker permit.
On Valentine’s Day 14 February 2017, the couple returned to Home Affairs to finalise their marriage. But Home Affairs indicated that a recently published circular from the Deputy Director for Civic Services prohibited the marriages for asylum seekers whose applications for asylum were not finalised.
Dismayed, the couple approached the Eastern Cape Division High Court for relief.
High Court
The couple argued that the circular was an unconstitutional infringement of their rights to equality and dignity. Also, they argued that the circular infringed international law treaties on the rights of asylum seekers. These international laws, which South Africa has signed and ratified, expressly prohibit the prejudicial conduct of Home Affairs.
Highlighting the unreasonableness of Home Affairs’s conduct, the couple pointed out that the Refugee Appeal Board had been defunct for two years, resulting in Ochogwu waiting for a decision for over five years.
Home Affairs argued that the applicants should wait for a decision by the Refugee Appeal Board. Also, they argued that the applicants marriage was fraudulent to secure residency rights for Ochogwu. But Home Affairs provided no evidence for this.
After considering the arguments, the High Court concluded that the circular infringed the applicants’ rights to equality and was therefore unconstitutional. The court ordered that the parties should be allowed to marry. The respondents appealed.
Supreme Court of Appeal
The SCA considered two main issues. First, the legal status of the Home Affairs circular. Second, whether the ban on marriage for asylum seekers was unconstitutional.
Home Affairs argued that a circular is not a law and therefore the court cannot review it. But the court said that a circular is meant to guide officials in implementing government policy. The SCA noted that a similar argument had been used in the case of Ahmed v Minister of Home Affairs. The Constitutional Court in that case rejected the argument stating that it was not important to decide whether a circular was a law or not. What was important, the Constitutional Court concluded, was whether it was treated as a law by those responsible for implementing it. Put differently, if Home Affairs used the circular to give or deprive people of their rights (as laws do), then the court can review it.
The advocate representing Home Affairs argued that considering the circular as a whole, it did not bar asylum seekers from getting married. The words of the circular, he said, affirmed the right of asylum seekers to marry but only sought to guide marriage officers in concluding marriages and prevent marriages involving undocumented immigrants.
The SCA disagreed. The court took particular note of the sections of the circular that read: “refugees whose asylum application is pending cannot contemplate marriage” and “should there be an inquiry to a refugee or asylum seeker status, the marriage cannot be concluded”. The SCA concluded that these sections clearly deny asylum seekers the right to marry. Also, the court said, an interpretation that denied Ochogwu the right to marry is how the circular was understood by Home Affairs officials.
The SCA said that all interpretations of fundamental rights, such as the right to equality, must acknowledge the constitutional value of dignity. The court found it unacceptable that the wording of the circular was contradictory — the circular affirmed the right of asylum seekers to marry in one sentence, only to deny the right in the next. The court quoted the judgment of Minister of Home Affairs v Watchenuka, where the Constitutional Court stated “human dignity has no nationality”.
The SCA referred to judgments of the Constitutional Court that speak to the importance of marriage as a social institution for the expression of one’s dignity and autonomy – “it offers a social and legal shrine for love and for commitment and for a future shared with another human being”.
Court rebukes Home Affairs
The SCA’s conclusion also included a scathing rebuke of Home Affairs. The court said that judicial precedent required the state to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. The court found Home Affairs had failed dismally to achieve these constitutional imperatives. The court described Home Affairs’s conduct as “inexcusable and deserving of censure”. It said that Home Affairs officials were lucky to not have been called upon to personally pay the costs of litigation.
The court took particular exception to Home Affairs questioning the legitimacy of the couple’s marital relationship

SA, Ethiopia finalise visa waivers for officials

31 Jan 2020 – Tourism Update
South Africa and Ethiopia have signed an agreement to waive of visa requirements for holders of diplomatic or official/service passports.
Ethiopian Prime Minster, Abiy Ahmed Ali, and South African President, Cyril Ramaphosa, said in a press statement that the waiver was “expected to ease the travel of officials who will contribute to further strengthen bilateral relations”.
The two men discussed further co-operation in addressing illegal migration. Both leaders signed the memorandum of understating on the co-operation in tourism and recognise that it will be key to creating employment opportunities, especially for the youth.
Prime Minister Ali was a special guest at the African National Congress’s 108th anniversary celebrations in the Northern Cape