The applicant acquired her South African citizenship by birth. She entered the then South West Africa on 2 February 1981. She has been resident in the territory – which became the Republic of Namibia on the date of Independence – ever since. It is not in issue that she entered the then South West Africa lawfully and that she subsequently acquired lawful “domicile” in the territory. Her status changed to that of an “alien” as defined in the Aliens Act, 1937 when s. 29 of the Namibian Citizenship Act, No. 14 of 1990 (hereinafter referred to as the “Act”) substituted for “South African citizen” the expression “Namibian citizen” shortly after Independence. The change did not affect the legality of her continued residence in the country. She was exempted by s. 12(1)(a) of the Aliens Act from the statutory requirements relating to temporary or permanent residence permits otherwise required by s. 2 of that Act of aliens who take up residence in the country (c.f. Swart v Minister of Home Affairs, Namibia 1997 NR 268 (HC) at 278A-B.).
The applicant’s difficulty, therefore, does not so much relate to the legality of her residency, but manifested itself when, after a sojourn in South Africa, she presented herself at a port of entry on the international border between Namibia and South Africa to re-enter Namibia: being an alien, the Immigration Officer was understandably reluctant to allow her re-entry without a temporary or permanent residence permit. As it happened, the officer eventually relented but the experience left her shaken and apprehensive that she might be denied re-entry in future by an immigration officer with lesser understanding or appreciation of her legal rights to residency. She was also concerned that without any official documentation recognizing her right to residence in Namibia, she would be at risk of being arrested as a suspected prohibited immigrant under the Immigration Control Act, 1993. The thought that she could obtain her release in due course by proving her right to residence in Namibia was, understandably, of cold comfort.