South Africa: B N.O. v Minister of Home Affairs N.O. and Others
Published: 29/May/2018
Source: High Court of South Africa (Eastern Cape)
(2665/2017) [2018] ZAECPEHC 24 (29 May 2018)
JUDGMENT
GOOSEN, J.
[1] There are presently three applications before this court. They relate to an order made by Revelas J on 22 September 2017 (hereafter the ‘main application’), the details of which I shall set out hereunder. The first application, in sequence, is one in which the applicant seeks to have the respondents committed for contempt of the order of Revelas J. The second is an interlocutory application in which the applicant seeks to have one Deon Erasmus (hereafter ‘Erasmus’), who is the Director of Legal Services in the Department of Home Affairs, joined as a fourth respondent in the contempt proceedings. The third application is one brought by the respondents for rescission of the order of Revelas J. I shall, for convenience, refer to the parties as they are cited in the main application.
[2] The underlying issue in these applications concerns the immigration status of two minor orphaned children who are presently in the care of the Protea Child and Youth Care Centre by order of the Children’s Court. The applicant is a registered social worker employed by the ACVV.[1] He has been appointed as the case worker for the minor children. He acts in that capacity as well as in terms of s 38 (b) of the Constitution read with s 15 (2) (b) of the Children’s Act , 38 of 2005.
[3] The children are E. N. (hereafter EN), a 14 year old girl, and G. N. (GN), a 7 year old boy. EN is presumed to have been born in the Democratic Republic of the Congo (hereafter the DRC) on […] 2004. She came to South Africa with her biological mother, D. T. N. (hereafter ‘D.’) during or about 2010. The identity, nationality and whereabouts of EN’s biological father is unknown.
[…]
[12] The matter came before Revelas J on 21 September 2017. On that day the learned judge heard full argument on the matter by applicant’s counsel, Ms Crouse and, thereafter, on 22 September 2017 made the following order:
1. That E. M. N. and G. N. are declared “unaccompanied minors” for which a durable solution must be found in terms of South Africa’s international law obligations.
2. That the failure of the First Respondent to consider and decide upon E. M. N.’s application for exemption as contemplated in Section 31 (2) (b) of the Immigration Act 12 of 2002 , is declared to be inconsistent with the Constitution of South Africa, 1996 and an infringement of her right to lawful administrative action.
3. That the First Respondent is directed:
3.1. To consider and decide upon E. M. N.’s application for exemption as contemplated in section 31 (2) (b) of the Immigration Act 12 of 2002 within one month of the date of this order.
3.2 To inform the applicant’s attorneys and this Court in writing within five days of the outcome of the said application for exemption, and in the event that the application is unsuccessful to include the reasons in such notification.
4. That G. N., born on […] 2011 is declared to be a South African citizen by birth, as contemplated in section 2 (2) of the South African Citizenship Act 88 of 1995 , as amended.
5. That the respondents are ordered to give effect to the declaratory order in the preceding paragraph by ensuring:
5.1 that the particulars of birth of the minor child, G. N. are included in the population register of South Africa, and
5.2 that the applicant is furnished with an amended birth certificate pertaining to G. N. containing a valid identification number
[…]
[67] In conclusion, it is apposite to remark briefly on the underlying issue which animates this litigation, namely the fraught attempts to secure appropriate protection of the children’s rights. It is not necessary to spell out the international obligations which attach to situations such as these where undocumented children are unable to assert their rights to nationality and citizenship . I have already stated that the paramount best interests of the children, which accord with the State’s international law obligations, ought to direct the respondents’ actions in regard to compliance with the order made on 22 September 2017. It is to be hoped that the first respondent will take due and proper cogniscance of these obligations and that the second respondent, as the administrative head of the Department, will act with proper expedition to ensure that any such impediments to carrying out the terms of paragraph 5 of the order, as may exist, are resolved.
[68] In the light of the circumstances which gave rise to the application for contempt and the interlocutory application to join a fourth respondent, I intend to make an order directing the second respondent to take steps necessary to ensure compliance with paragraph 4 and 5 of the order and to report to the court on the steps taken. The respondents are of course represented in these proceedings by the State Attorney and by senior and junior counsel. It is to be expected therefore that the State Attorney will advise each of the respondents of the outcome and what is expected of them in relation to compliance with the original order. In the circumstances the State Attorney will be also be directed to provide a copy of the judgment to each of the respondents and to file an affidavit with the Registrar setting out the method by which and the date upon which same was done.
Read further on SAFLII: https://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAECPEHC/2018/24.html&query=citizenship%20near%20act