IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA by Iu8L29JH

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									                                               CASE NO. 197/2000




                  IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)



In the matter between:


FRANKLIN CLEMENT GONDWE                        APPLICANT




and


THE MINISTER OF HOME AFFAIRS                   1ST RESPONDENT


THE DIRECTOR-GENERAL FOR HOME AFFAIRS 2ND RESPONDENT

THE REGIONAL DIRECTOR NORTH WEST
DEPARTMENT OF HOME AFFAIRS                     3RD RESPONDENT




_______________________________________________________________
_______
                             JUDGMENT

_______________________________________________________________

_______
MOGOENG J.




[1]   On 06 April 2000 the Applicant saw a letter directing the third Respondent

      to arrange for the Applicant’s ‘removal from the country as soon as possible’.

      It was signed by a certain W.C.S. Vorster on behalf of the second

      Respondent. On the next day, he applied for and was granted a rule nisi by

      Nkabinde J. The effect of the rule nisi was to:




      (A)   RESTRAIN THE RESPONDENTS FROM ARRESTING OR CAUSING

            THE APPLICANT TO BE ARRESTED;




      (B)   RESTRAIN      THE     RESPONDENTS         FROM      DEPORTING      THE

            APPLICANT FROM SOUTH AFRICA; AND




      (C)   DECLARE THAT THE APPLICANT HAS A VALID IDENTITY

            DOCUMENT AND IS A CITIZEN OF THE REPUBLIC OF SOUTH

            AFRICA.




[2]   AFTER     NUMEROUS         POSTPONEMENTS,           THE     MATTER      WAS
      EVENTUALLY ARGUED ON 30 NOVEMBER 2000 BEFORE ME.           I

      RESERVED JUDGMENT AND THIS IS THE JUDGMENT AND THE

      REASONS THEREFOR.




[3]   EACH PARTY ADVANCED MANY REASONS IN SUPPORT OF HIS/HER

      CASE.   IN THE VIEW THAT I TAKE OF THIS MATTER IT IS

      UNNECESSARY TO TRAVERSE ALL THOSE REASONS.          WHAT IS

      CENTRAL TO THIS APPLICATION IS THAT THE APPLICANT IS

      PRESENTLY IN POSSESSION OF AN IDENTITY DOCUMENT THAT SAYS

      THAT HE IS A CITIZEN OF THE REPUBLIC OF SOUTH AFRICA. HE HAS

      NEITHER RENOUNCED HIS CITIZENSHIP NOR HAS THE FIRST

      RESPONDENT, OR ANY OFFICIAL TO WHOM THE FIRST RESPONDENT

      MAY HAVE DELEGATED HIS POWER, DEPRIVED THE APPLICANT OF

      HIS CITIZENSHIP IN TERMS OF THE LAW. I ASKED COUNSEL FOR THE

      RESPONDENTS WHETHER THAT CRUCIAL DECISION WAS TAKEN. HE

      REPLIED THAT HE DID NOT HAVE THAT INFORMATION.          THE

      FUNDAMENTAL PROBLEM THAT I AM CONFRONTED WITH IS,

      THEREFORE, THAT THE RESPONDENTS WERE ABOUT TO DEPORT A

      CITIZEN OF THIS COUNTRY AS AT THE TIME WHEN THIS APPLICATION
WAS LAUNCHED.    THE MERITS OR DEMERITS OF THE PARTIES’

CASES AS TO WHETHER OR NOT THE APPLICANT SHOULD HAVE

BEEN ISSUED WITH A BIRTH CERTIFICATE AND IDENTITY DOCUMENT,

WHICH BEAR TESTIMONY TO HIS CITIZENSHIP, ARE IRRELEVANT TO

ME AT THIS STAGE. THEY COULD BE OF RELEVANCE TO THE FIRST

RESPONDENT IN CONSIDERING WHETHER OR NOT TO DEPRIVE THE

APPLICANT OF HIS CITIZENSHIP. THE SOUTH AFRICAN CITIZENSHIP

ACT 88 OF 1995 VESTS THE POWER TO DEPRIVE PEOPLE OF THEIR

CITIZENSHIP IN THE FIRST RESPONDENT AND NOT IN THIS COURT.

THIS COURT CANNOT USURP THE FIRST RESPONDENT’S POWER.

THE PRESENT POSITION IS THAT THE APPLICANT IS A SOUTH

AFRICAN CITIZEN. THE FIRST RESPONDENT WOULD FIRST HAVE TO

DEPRIVE HIM OF HIS CITIZENSHIP BEFORE THE APPLICANT MAY BE

DEPORTED.   THE RESPONDENTS CANNOT, THEREFORE, DEPORT

HIM FROM SOUTH AFRICA FOR AS LONG AS HE HAS NOT BEEN

LAWFULLY DEPRIVED OF HIS CITIZENSHIP.      I TURN TO THE

QUESTION WHETHER THE RESPONDENTS SHOULD BE RESTRAINED

FROM ARRESTING OR CAUSING THE APPLICANT TO BE ARRESTED.
[4]   THIS COURT CANNOT RESTRAIN THE RESPONDENTS FROM EITHER

      ARRESTING OR CAUSING THE APPLICANT TO BE ARRESTED. THERE

      MAY WELL BE REASONABLE GROUNDS FOR ARRESTING HIM.

      BESIDES, THE APPLICANT HAS FAILED TO EXPLAIN WHY SUCH A

      RESTRAINING ORDER IS NECESSARY. FINALLY, I WILL DEAL WITH

      THE PRAYER FOR AN ORDER DECLARING THAT THE APPLICANT HAS

      A VALID IDENTITY DOCUMENT AND IS A CITIZEN OF THE REPUBLIC OF

      SOUTH AFRICA.




[5]   ALTHOUGH THE APPLICANT’S IDENTITY DOCUMENT SHOWS THAT HE

      IS A CITIZEN OF SOUTH AFRICA, HIS CITIZENSHIP HAS ALREADY BEEN

      QUESTIONED. ALL PROCESSES NECESSARY TO INVESTIGATE AND

      DEAL WITH QUESTIONABLE CITIZENSHIP MUST BE LEFT TO UNFOLD

      FREELY. IT IS OPEN TO THE FIRST RESPONDENT TO CONSIDER ALL

      THE INFORMATION AT HIS DISPOSAL AND TO DECIDE WHETHER OR

      NOT TO DEPRIVE THE APPLICANT OF HIS CITIZENSHIP, IF THIS HAS

      NOT YET BEEN DONE.        THIS COURT CANNOT IGNORE THE

      ALLEGATIONS AGAINST THE APPLICANT AND MAKE A DECLARATORY

      ORDER THAT MAY HAVE THE EFFECT OF PREVENTING THE FIRST
      RESPONDENT FROM EXERCISING HIS POWERS SHOULD HE WISH TO

      DO SO.




[6]   I THEREFORE MAKE THE FOLLOWING ORDER:




         “ (a)   The rule nisi is confirmed only in respect of the
                 deportation;


          (B)    THE FIRST RESPONDENT IS TO PAY COSTS TO
                 THE       APPLICANT      INCLUDING        COSTS
                 CONSEQUENT UPON THE EMPLOYMENT OF TWO
                 COUNSEL;


           (c)   The rule nisi is discharged in respect of all the
                 remaining prayers.”




M.T.R. MOGOENG
JUDGE OF THE HIGH COURT




APPEARANCES
DATE OF HEARING             : 30 NOVEMBER 2000
DATE OF JUDGMENT            : 08 FEBRUARY 2001


COUNSEL FOR APPLICANT       :   ADV   L.C.J. MAREE   SC   (WITH
                            HIM       ADV R.D. HENDRICKS)
COUNSEL FOR RESPONDENTS     : ADV O.K. CHOARO


ATTORNEYS FOR APPLICANT     : TLHAPI & MOOKELETSI
ATTORNEYS FOR RESPONDENTS   : THE STATE ATTORNEY

								
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