SCA rules against Home Affairs in brothers’ citizenship battle

The Supreme Court of Appeal (SCA) has thrown out the department of home affairs’ bid to overturn an order that it grants citizenship to two men who were born in South Africa to Angolan refugees.

This comes on the back of a protracted legal battle, dating back to 2014, when their family’s refugee status was withdrawn and the two men – then teenagers – were threatened with repatriation to a country they had never set foot in.

In 1995, Joseph Emmanuel Jose and Jonathan Diabaka’s parents fled their war-torn home country and came to SA. The following year, Jose was born. He was followed a year later by his brother.

They were all granted refugee status in 1997 but this was withdrawn about 17 years later, and the brothers – then in high school – were told if they wanted to stay in the country they would have to get Angolan passports, prompting them to turn to the courts.

Last year, the High Court in Pretoria ordered that the department grant Jose and Diabaka – now both in their early 20s – citizenship, finding they met the criteria set out in the Citizenship Act and were entitled to as much.

The Act provides for children who are born in South Africa, to foreign parents, to be granted citizenship as long as their births have been registered and they have lived in the country their whole lives.

“It was argued that [the Act] does not confer a right to citizenship, but rather a right to apply for citizenship,” then acting Judge Seena Yacoob said in the court’s judgment.

“In my view it does both. If one fulfils all the requirements, one then has the right, and the choice, to apply for citizenship and having made the choice to apply, one then has a right for that citizenship to be granted. There is no room for the exercise of discretion.”

Yacoob granted the department leave to appeal her order – but only insofar as she had directed the department to grant the men citizenship as opposed to referring the matter back to it for reconsideration.

But last week, the SCA dismissed the case, finding it was “already absolutely clear” that Jose and Diabaka were eligible for citizenship.

In handing down the SCA’s ruling, Judge Nathan Ponnan and acting Judge Keoagile Matojane pointed to Jose’s evidence that being repatriated to Angola would be “a forced removal from our country of birth and home country to a foreign land”.

“The [brothers] have never been to Angola. They have no family there and know little about Angola or the way of life in that country. Neither speaks any Portuguese,” the judges said. “The conduct of the [department] consigns the respondents to remain as noncitizens in the only country they have ever known from birth.”

The judges described the department’s argument that the matter should be referred back to it as “purposeless”.

“In truth, it is inappropriate for the [department] to persist in it. At the level of fact, the appeal is therefore contrived and serves no useful purpose,” they said.

The department was slapped with the costs of the application but the court stopped short of issuing a personal costs order against specific home affairs officials, as argued for by the brothers’ legal team.

– bernadettew@citizen.co.za

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