Court name
High Court Main Division
Case number
APPEAL 147 of 2013
Case name
De Wilde v Minister of Home Affairs
Media neutral citation
[2014] NAHCMD 160
Judge
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 147/2013





DATE:
22 MAY 2014





In the matter
between:





MARIUS CORNELIUS
DE
WILDE...........................................................APPLICANT





And





THE MINISTER OF
HOME
AFFAIRS..................................................RESPONDENT





Neutral citation:
De Wilde v The Minister of Home Affairs (A 147/2013) [2014] NAHCMD
160 (22 May 2014)





Coram: PARKER AJ





Heard: 3 April
2014





Delivered: 22 May
2014





Flynote: Citizenship
– By birth – Requirements of in terms of art 4(1)(d) of
the Namibian Constitution – Father or mother of person must be
ordinarily resident in Namibia at time of his or her birth –
For purposes of art 4(1)(d) ‘ordinarily resident’ means
continuously and permanently resident in Namibia – Court held
that proof of ‘ordinarily resident’ is ultimately a
question of fact, depending more on the evidence of matters
susceptible of objective proof than on evidence as to state of mind –
Court held further that there is the need for simple test for
respondent to apply when determining whether a person is ordinarily
resident in Namibia – Court held further that the words
ordinarily resident must therefore be construed so as to enable the
respondent’s administrative bodies and administrative officials
to establish without undue difficulty whether a person is ordinarily
resident in Namibia – Court found that since the applicant
resided in Namibia on the strength of temporary employment permits
applicant was not ordinarily resident in Namibia within the meaning
of art 4(1)(d) of the Namibian Constitution – For applicant to
be ordinarily resident applicant must be in possession of permanent
residency permit.





Summary: Citizenship
– By birth – Requirements of in terms of art 4(1)(d) of
the Namibian Constitution – Father or mother of person must be
ordinarily resident in Namibia at time of his or her birth –
For purposes of art 4(1)(d) ‘ordinarily resident’ means
continuously and permanently resident in Namibia – Applicant
(and his wife) are on temporary employment permits – Applicant
applied to the respondent to issue a Full Birth Certificate
(Namibian) to applicant’s son born during the time the
applicant is on employment permit status and therefore sojourning in
Namibia temporarily – Court found that in terms of s 24(b) of
the Immigration Control Act a person who resides in Namibia on the
basis of an employment permit which is a temporary permit has not
established his intention to reside in Namibia permanently and
accordingly is not ordinarily resident in Namibia for purposes of art
4(1)(d) of the Namibian Constitution – Consequently, the
respondent was correct in refusing to issue a Full Birth Certificate
(Namibian) to the applicant’s son – Consequently, court
found that applicant has not established a right that may be
protected by a declaratory order – Accordingly court dismissed
the application.








ORDER








(a) The application
is dismissed.





(b) I make no order
as to costs








JUDGMENT








PARKER AJ:





[1] The applicant’s
application is on notice of motion in which he seeks primarily a
declaratory order declaring the minor child Bram Cornelius de Wilde
(born on 27 October 2009) to be a Namibian citizen by birth in terms
of art 4(1)(d) of the Namibian Constitution and, concomitantly, a
prayer that the court directs the respondent to issue Bram with a
Full Namibian Birth Certificate. The respondent has moved to reject
the application.





[2] The power of
this Court to grant declaratory orders flow from s 16 of the High
Court Act 16 of 1990 which provides that the Court has power –





(d) … in its
discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination. (My emphasis)





[3] After Bram’s
birth and upon an application to the respondent’s Ministry
(‘Ministry’) by Bram’s father, Mr de Wilde (the
applicant), and Bram’s mother (Mrs de Wilde) was issued by the
Ministry with a ‘Full Birth Certificate: Non-Namibian’.
When Bram was born, Bram’s father and mother had been residing
in Namibia on the strength of work permits which, according to the
founding affidavit, ‘were continually renewed’. It is not
stated in the affidavit the frequency at which the permits were
renewed; and no copies of the initial permits and of the renewals are
attached to the affidavit. I am, therefore, unable to say when the
initial permits were issued and at what frequency they were renewed.
Be that as it may, on the papers, I find that Mr and Mrs de Wilde
were resident in Namibia on the strength of work permits issued by
the Ministry.





[4] This factual
finding leads me to the next level of the enquiry. The basis on which
the applicant has approached the court for a declaratory order is
simply this, that is to say, according to the applicant, he the
applicant and Mrs de Wilde ‘were ordinarily resident in Namibia
at the time when Bram was born’ and so, therefore, Bram is
‘entitled to Namibian citizenship by birth as contemplated in
Article 4(1)(d) of the Constitution of the Republic of Namibia’.





[5] As I see it, the
only issue that the court should determine is whether Bram qualifies
for Namibian citizenship on the basis that his parents, Mr and Mrs de
Wilde, were allegedly ordinarily resident in Namibia at the time of
his birth, within the meaning of art 4(1)(d) of the Namibian
Constitution. It is not in dispute that at the time of the birth of
Bram his parents were resident in Namibia on the strength of work
permits issued in terms of s 27 of the Immigration Control Act 7 of
1993 (‘the Act’), as I have found previously. But were
they ‘ordinarily resident’ in Namibia within the meaning
of article 4(1)(d) of the Namibian Constitution? That is the only
question to be determine in order to dispose of the application.





[6] Put simply, Mr
Vlieghe, counsel for the applicant, argues that Bram’s parents
were ordinarily resident in Namibia on the basis that they were at
the material time issued with employment permits and they had certain
businesses going. Mr Hinda SC, assisted by Mr Narib, represents the
respondent and he argues the opposite way thus: a person who has been
issued with an employment permit is resident in Namibia but he or she
is not ordinarily resident in Namibia within the meaning of the
article 4(1)(d) of the Namibian Constitution.





[7] It now behoves
me to undertake a construction of the words ‘ordinarily
resident’ in art 4(1)(d) of the Namibian Constitution. In this
regard, I should commend both Mr Vlieghe and Mr Hinda for their
industry for submitting comprehensive heads of argument and referring
authorities to the court. I have pored over the authorities and I
have applied principles distilled from those that are of real
assistance on the points under consideration.





[8] In order to cut
my way through the thicket of so many interpretations given to the
phrase ‘ordinarily resident’ by our superior courts and
foreign courts of comparable jurisdiction, I should start with this.
In my opinion the words ‘ordinarily resident’ should be
given their natural and ordinary meaning (see Shah v Barnet London
Borough Council and other appeals (1983) 1 ALL ER 226 (House of Lords
at 234), but natural and ordinary meaning by context. See Rally for
Democracy and Progress and Others v Electrical Commission of Namibia
and Others 2009 (2) NR 793 (HC).





[9] Having given the
words ‘ordinarily resident’ their natural and ordinary
meaning by the legal context in which the words are used in art
4(1)(d) of the Namibian Constitution, I conclude that the words do
not imply ‘lawful resident’ simpliciter in the legal
context of art 4(1)(d). I have pored over Ministry of Home Affairs v
Dickson 2008 (2) NR 665 (SC) at 683F where Chomba AJA stated that
‘ordinarily resident’ implies lawful residence. I
understand the court in Dickson to hold that an illegal immigrant –
as at common law – could never, for as long as his or her
residence in the host country remained unlawful, acquire the
citizenship of that host country. In that context ‘ordinarily
resident’ in Namibia connotes lawfully resident in Namibia.
That is the law. But that is not the law at play here in the present
proceeding, for, if the phrase ‘ordinarily resident’ in
Namibia within the meaning of art 4(1)(d) is intended to convey
‘lawful residence’ then very absurd consequences would
follow; consequences which the framers of the Namibian Constitution
could not have intended. Take for instance this illustration. A
woman, X, is issued with a visitor’s entry permit in terms s 29
of the Immigration Control Act 7 of 1993 and is thereby permitted to
sojourn in Namibia for six months, commencing 1 June 2013. X gives
birth to baby X on 5 June 2013, that is, during X’s sojourn in
Namibia. It would monumentally absurd to argue that since X is
lawfully resident in Namibia, X is ordinarily resident in Namibia
within the meaning of art 4(1)(d) of the Namibian Constitution, and
so, therefore, baby X qualifies for Namibian citizenship in terms of
art 4(1)(d). The conclusion is irrefragable that the phrase
‘ordinarily resident’ does not imply ‘lawful
resident’ for purposes of art 4(1)(d).





[10] I have set out
the baby X illustration for a purpose. It is to make the point that
the mere incidence of birth in Namibia does not qualify the person
born for automatic acquisition of Namibian citizenship as of right:
the person’s father or mother must be ordinarily resident in
Namibia at the time of the birth of such person. In this regard, it
must be remembered that the ratio decidendi of Thloro v Minister of
Home Affairs 2008 (1) NR 97 (HC) is that requiring an applicant, a
propositus for citizenship by naturalisation in terms of art 4(5) of
the Namibian Constitution to renounce her South African citizenship
is not unconstitutional. Thloro is not concerned with the
interpretation and application of s 4(1)(d).





[11] I have set out
baby X illustration to make also the following point. The natural and
ordinary meaning by context, that is by the legal context of art
4(1)(d) of the Namibian Constitution, is something more than
‘habitually and normally resident’ in Namibia. See Shah v
Barnet London Borough Council and other appeals [1983] 1 ALL ER 226
(House of Lords) at 234b-f. The issue is not the purpose for which a
person is resident in Namibia. In my opinion, to be able to take
advantage of art 4(1)(d) a person’s residence in Namibia must
have a sufficient degree of not only continuity (barring occasional
and temporary absences from Namibia), but also permanence. The
natural and ordinary meaning of the words is that ‘it results
in the proof of ordinarily resident’, which is ultimately a
question of fact, depending more on the evidence of matters
susceptible of objective proof than on evidence as to state of mind.
(Shah v Barnet London Borough Council and other appeals at 235i-236a,
per Lord Scarman) There is, therefore, the need for a simple test for
the respondent and the respondent’s Ministry’s
administrative bodies and administrative officials charged with the
responsibility to implement art 4(1)(d) (and other provisions) to
apply. See Shah at 236a. In this regard, the words must be construed
so as to enable the respondent’s Ministry’s
administrative bodies and administrative officials to establish
whether a person is ordinarily resident in Namibia without undue
difficulty. See Shah at 238b. After all; if art 4(1)(d) is not given
real meaning and implemented, the provisions there would remain
high-falutin ideals; to be admired and not to be implemented. But
that could not have been the intention of the framers of Namibian
Constitution.





[12] Thus, as I have
said previously, the implementation of the constitutional provision
should lend itself to a simple test; a test that can be applied
reasonably, applied without undue difficulty and applied with
appreciable certainty by those whose responsibility it is to
implement the provisions of art 4(1)(d). And above all, as I have
said previously, proof of ‘ordinarily resident’ by a
person is a question of fact, depending more on the evidence of
matters susceptible of objective proof than on evidence as to state
of mind.





[13] Mr Vlieghe’s
submission lands primarily on the point that the applicant and Mrs de
Wilde have made Namibia their home. And what is the basis of
counsel’s submission? It is this; and it is a rehearsal of a
statement in the founding affidavit: The applicant and his wife sold
all their property and assets in the Netherlands, the country of
their birth because they did not have any intention to move back to
the Netherlands and were going to make a new life for themselves in
Namibia and be domiciled in Namibia. That, in my view, is evidence as
to their state of mind. I shall return to this conclusion in due
course.





[14] Mr Hinda argues
that that is not enough because the applicant and Mrs de Wilde are
lawfully resident in Namibia on the strength of employment permits
issued in terms of s 27 of the Immigration Control Act 7 of 1993. And
for Mr Hinda, the applicant and Mr de Wilde ‘were admitted to
Namibia for the limited purpose of employment and their right to
remain in Namibia is temporary, tenuous or precarious, dependent on
whether or not such a right is renewed’.





[15] That an
employment permit is a temporary permit cannot be controverted. The
Immigration Act says so in s 24. Accordingly, in my opinion, it
matters tupence whether as is in the case of the applicant and Mrs de
Wilde the employment permit has been renewed several times. The
renewability of an employment permit cannot affect its statutory
nature of temporariness. The applicant says he and his wife have the
intention not to move back to the Netherlands; but their right to
remain in Namibia is temporary. And, as I have mentioned previously,
the proof of ordinary residence in terms of art 4(1) of the
Constitution is ‘ultimately a question of fact, depending more
on the evidence of matters susceptible of objective proof than on
evidence as to state of mind’. See Shah v Barnet London Borough
Council and other appeals at 235i-236a.





[16]The question
that arises is this. Is there anything evidence of which would be
susceptible of objective proof and which lends itself to a simple
test which can be applied in the interpretation and application of
art 4(1)(d) of the Namibian Constitution? On the evidence I find that
there is in the law such a thing and I do not find – and it has
not been established – that provision of the law is offensive
of the Constitution. I am referring to s 26 of the Immigration
Control Act. In terms of s 26 of the Act a person who is issued with
a permanent residence permit is entitled to ‘reside permanently
in Namibia’. (Italicized for emphasis) On the other hand; a
person who is resident in Namibia on the strength of an employment
permit is not so entitled. In this regard s 24 of the Immigration
Control Act says it all; and the provisions there confirm the
conclusion I have reached. Section 24 provides:





‘Subject to
the provisions of section 35, no person shall-





(a) enter or reside
in Namibia with a view to permanent residence therein, unless such
person is in possession of a permanent residence permit issued to him
or her in terms of section 26; or





(b) enter or reside
in Namibia with a view to temporary residence therein, unless-





(i) in the case of
any person who intends to enter or reside in Namibia for the purpose
of employment or conducting a business or carrying on a profession or
occupation in Namibia, such person is in possession of an employment
permit issued to him or her in terms of section 27; or





(ii) in the case of
any person who intends to enter or reside in Namibia for the purpose
of attending or undergoing any training, instruction or education at
any training or educational institution in Namibia, such person is in
possession of a student’s permit issued to him or her in terms
of section 28; or





(iii) in the case of
any person who intends to enter or reside for any other purpose, such
person is in possession of a visitor’s entry permit issued to
him or her in terms of section 29.’





[17] I find that the
acquisition of a permanent residence permit is evidence which would
be susceptible of objective proof of the intention of the holder
thereof to reside in Namibia with a view, that is, the intention, to
permanent residence in Namibia. And as I have stated previously,
‘ordinarily resident’ connotes continuous and permanent
residence. And continuous and permanent residence is then proven on
the basis of one being issued with a permanent residence permit.





[18] Thus, the test
of ‘ordinarily resident’ on the basis of the existence of
a permanent resident permit is simple to apply. It is then reasonably
established without undue difficulty that the holder of a permanent
resident permit has proven his or her intention to reside in Namibia
permanently. In that case the test for determining one’s
intention to reside permanently is simple to apply and the
respondent’s administrative bodies and administrative officials
are able to establish without undue difficulty whether the propositus
for ‘ordinarily resident’ status has established his or
her intention to reside in Namibia ‘with a view to permanent
residence therein’. See s 24(a) of the Immigration Control Act.
In my opinion, it is only when a person has established his intention
to reside in Namibia continuously and permanently can it be said that
he or she is ‘ordinarily resident’ in Namibia within the
meaning of art 4(1)(d) of the Namibian Constitution. And the
objective proof of such intention is established only if ‘such
a person is in possession of a permanent residency permit issued to
him or her in terms of section 26’ of the Immigration Control
Act. See s 24(a) of the Act.





[19] On the facts
and with the greatest deference to the applicant, I find it utterly
absurd, fallacious and self-serving for the applicant to contend that
he has intention to remain in Namibia permanently when the
immigration status he possesses is evidenced by an employment permit
which he obtained ‘with a view to temporary residence’ in
Namibia. See s 24(b) of the Immigration Control Act. In sum, the
applicant possesses a temporary permit to reside in Namibia.





[20] In sum, in my
view, the phrase ‘ordinarily resident’ in Namibia means
continuously and permanently resident in Namibia, barring, of course,
short periods abroad for business holidays and suchlike pursuits. And
it can easily be established whether a person has established by
objective proof his intention to reside in Namibia and with the
intention to remain permanently resident in Namibia if the ‘person
is in possession of a permanent residency permit issued to him or her
in terms of section 26’ of the Immigration Control Act. After
all, as I said previously, ‘the natural and ordinary meaning’
of the words ‘ordinarily resident … results in the proof
of ordinary residence, which is ultimately a question of fact,
depending more on the evidence of matters susceptible of objective
proof than or evidence as to state of mind’. (Shah v Barnet
London Borough Council and other appeals at 235i-236a, per Lord
Scarman)





[21] Accordingly, I
conclude that the possession of a permanent residency permit is
evidence of a person’s intention to reside in Namibia and
intention to ‘permanent residence therein’, and,
accordingly evidence of ‘ordinarily resident’ in Namibia
within the meaning of art 4(1)(d) of the Namibian Constitution. This
conclusion as to the interpretation and application of art 4(1)(d) is
in tune with the natural and ordinary meaning of the words
‘ordinarily resident’ and it conduces to the intention of
the framers of the Namibian Constitution, which intention has been
given real meaning capable of implementation by the Parliament in the
Immigration Control Act 7 of 1993, which, as I have said, has not
been shown to be offensive of the Namibian Constitution. It follows
that a person is not ordinarily resident in Namibia within the
meaning of art 4(1)(d) if that person resides in Namibia ‘with
a view to temporary residence’ in Namibia and for which he or
she has been issued with an employment permit in terms of s 24(b),
read with s 27, of the Act.





[22] Based on these
reasoning and conclusions, I hold that the applicant or Mrs de Wilde
was not ordinarily resident in Namibia within the meaning of art
4(1)(d) of the Namibian Constitution when Bram was born; and, a
priori, Bram does not qualify for Namibian citizenship by birth and
is, therefore, not entitled to be issued with ‘Full Birth
Certificate (Namibian)’.





[23] Having so held,
I determine that the applicant has failed to establish a right which
this court, in the exercise of its discretion, may protect; whereupon
the application fails. I decline to make any costs order for this
reason. I accept Mr Vlieghe’s submission that the applicant, on
two occasions, wrote to the respondent’s Ministry and the
Government Attorney with the view to settling the dispute outside the
surrounds of the court but the Ministry and the Government Attorney
did not answer those letters. They rebuffed the applicant’s
efforts without explanation; efforts which were aimed at avoiding
litigation. Consequently, although the applicant has been
unsuccessful, I think this is a good case where the successful party
should be denied his costs.





[24] One last point.
It is the point that Levi, who was born of the applicant and Mrs de
Wilde before Bram was born, was issued with a ‘Full Birth
Certificate (Namibian)’ by the respondent. This issue should
not concern this court. No evidence was placed before the Court
explaining why the respondent took the decision about the status of
Levi’s birth certificate. In any case, Levi’s birth
certificate is not part of the dispute that this court is entitled to
adjudicate in this matter pursuant to art 80(2) of the Namibian
Constitution.





[26] In the result,
I make this order:





(a) The application
is dismissed.





(b) I make no order
as to costs.











C Parker





Acting Judge






APPEARANCES








APPLICANT : S
Vlieghe


Of Koep &
Partners, Windhoek








DEFENDANT: G S
Hinda SC (assisted by G Narib)


Instructed by
Government Attorney, Windhoek