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

Source: Daily Maverick, 14/02/2020

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 â€` 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 â€` 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
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