Mulowayi and Others v Minister of Home Affairs and Another

Parties (including notable third parties)

Florette Kayamba Mulowayi (First Applicant), Nsongoni Jacques Mulowayi (Second Applicant), Gaddiel Mutamba Mubenishibwa Mulowayi (Third Applicant); Minister of Home Affairs (First Respondent), Director-General of the Department of Home Affairs (Second Respondent)

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Summary of Facts

Mr and Mrs Mulowayi (the First and Second Applicants) were nationals of the Democratic Republic of Congo who entered South Africa as refugees and were granted permanent residence in 2011. They subsequently had three children in South Africa. Their two elder children were recognised as South African citizens by birth and were issued identity numbers. However, their youngest child, Gaddiel (the Third Applicant), born in 2017, was not recognised as a citizen despite his birth being registered in compliance with the Births and Deaths Registration Acts. This was because Gaddiel was born after amendments to the South African Citizenship Amendment Act 2010 which removed the right of children of South African permanent residents to qualify for citizenship at birth.

The Applicants sought to obtain South African citizenship by naturalisation. Upon enquiry, officials of the Department of Home Affairs (‘the Department’) advised that eligibility would arise after five years of permanent residence and required the renunciation of their Congolese citizenship. Acting on this advice, the Applicants renounced their Congolese citizenship in 2015 and applied for naturalisation in 2016. On 24 October 2016, the couple received letters from the Department informing them that their applications for citizenship had been rejected under Regulation 3(2)(a), which creates a minimum period of 10 years permanent residency as qualification for citizenship. The Applicants had not satisfied this pre-requisite. As a consequence of having renounced their original nationality and being denied naturalisation, Mr and Mrs Mulowayi, together with their child Gaddiel, were rendered stateless.

The High Court upheld the Applicants’ challenge and declared Regulation 3(2)(a) invalid on the basis that it was ultra vires, irrational, and inconsistent with the Constitution, as it purported to impose a ten-year residency requirement contrary to the five-year period prescribed in the governing legislation. The Court found that the regulation exceeded the Minister’s regulatory powers and could not amend or override the Act. It accordingly set aside the decision taken on behalf of the Director-General to refuse the Applicants’ citizenship applications and directed that these be reconsidered within two months in accordance with the statutory framework.

However, the Court suspended the declaration of invalidity pending confirmation by the Constitutional Court. While it acknowledged that the child ought to be placed in a position to qualify for South African citizenship, it did not grant specific relief in his favour beyond this observation. The Applicants appealed this decision.

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Legal Arguments

Legal arguments by the Applicants

The Applicants sought confirmation of the High Court’s declaration that Regulation 3(2)(a) was constitutionally invalid, alternatively applying for leave to appeal against the suspension of that declaration.

They argued that the ten-year permanent residence requirement for naturalisation was inconsistent with section 5(1) of the governing statute, which prescribed a five-year period. They further contended that the High Court erred in suspending the declaration of invalidity, as this left the impugned regulation still operative and deprived them of effective relief despite the finding of unconstitutionality.

In addition, the Applicants challenged the suspension on the basis that it reflected a misunderstanding of the distinction between suspending a declaration of invalidity and granting substitutionary relief under administrative law. They submitted that unless the declaration of invalidity was confirmed without suspension, the unconstitutional regulation would continue to apply to their detriment.

The Applicants also raised the issue of appropriate relief for their child, Gaddiel, emphasising the need for a remedy that would address his exclusion from citizenship and resulting statelessness.

Legal argument by the Respondents

The Respondents opposed the application and argued that the High Court's declaration of invalidity should not be confirmed, or alternatively that the suspension order was appropriate.

They argued that the letter rejecting the First and Second Applicants’ citizenship applications was not subject to review under the Promotion of Administrative Justice Act (PAJA) for three reasons. First, the letter could not be regarded as a decision of the Minister because it had not been signed by him. Second, the Minister had not delegated his power to consider applications for citizenship under Section 5 of the South African Citizenship Act. Third, the letter did not contain all the criteria for a citizenship by naturalisation decision and was therefore an incomplete decision.

In response to the challenge to Regulation 3(2)(a), the Respondents contended that section 5(1)(c) of the Act (which prescribes a period of ‘not less than five years’) provides only a minimum period of residence, and that the Minister has the power to regulate a period in excess of that minimum. They therefore argued that the ten-year requirement in Regulation 3(2)(a) was lawful and consistent with the Act.

Regarding the Third Applicant, the Respondents argued that he was not without a remedy, as he could simply apply for citizenship once he attained the age of majority (18 years). They submitted that there was no urgency or constitutional violation requiring immediate recognition of his citizenship.

Outcome

The Court held that the High Court’s declaration of invalidity of regulation 3(2)(a) did not need confirmation, because Section 172(2)(a) of the Constitution only requires confirmation for Acts of Parliament, provincial laws, or conduct by the President, not for regulations made by Ministers. As a result, the Applicants’ request for confirmation was refused as unnecessary. The Court also found that the High Court had erred in suspending the declaration of invalidity, since there was no legal reason to delay the effect of the ruling.

The Court noted that the suspension had left the Applicants without effective relief, keeping the unconstitutional regulation in force and prolonging the Applicants’ statelessness. The Court found that the rights of a child (Gaddiel) were adversely affected and any further delay in finalising the matter would prejudice the Applicants.

In the interests of justice, the Court granted leave to appeal and upheld the appeal, setting aside the High Court’s suspension order. As a result, the invalidity of regulation 3(2)(a) took immediate effect. No order was made regarding costs.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution of the Republic of South Africa, 1996	Section 28(1)(a), Section 172(2)(a), Section 33
Domestic	South African Citizenship Act, 1995	Section 2(2), Section 3(2)(a), Section 5(1)(c) and (h), Section 23
Domestic	Promotion of Administrative Justice Act, 2000	Section 6(2)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Jo Venkov, ‘Mulowayi v Minister of Home Affairs [2019] ZACC 1 (29 January 2019)’ (2020) 2(1) The Statelessness & Citizenship Review 179.

• This case note explains the legal consequences of the decision for third applicant, Gaddiel, and highlights the Court’s obiter comments on the legal and practical challenges stateless people face in accessing South African citizenship.
• The author discusses the interplay between Sections 2(2) and 2(3) of the South African Citizenship Act and notes that Section 2(2) is intended to prevent statelessness by granting citizenship from birth, while Section 2(3) restricts certain citizenship claims to those who have reached the age of majority.
• The author comments that while the Court did not fully assess section 2(3) of the Citizenship Act, it acknowledged the potential conflict with children’s rights under the Constitution, the CRC, and the African Charter. They also note that the lack of implementing regulations under section 2(2) leaves stateless children without an effective remedy