Court name
High Court
Case number
APPEAL 322 of 2010
Case name
Le Roux v The Minister of Home Affairs and Immigration and Others
Media neutral citation
[2011] NAHC 159













CASE NO. A 322/2010







IN THE HIGH COURT OF NAMIBIA







In the matter between:







IRIS REGINA LE ROUX
….......................................................................APPLICANT







and







THE MINISTER OF HOME AFFAIRS &
IMMIGRATION …..........1ST
RESPONDENT



THE ATTORNEY-GENERAL
…....................................................2ND
RESPONDENT



THE GOVERNMENT OF THE REPUBLIC OF
NAMIBIA ….........3RD
RESPONDENT







CORAM: SMUTS J







Heard on: 2011.06.06



Delivered on: 2011.06.06











EX-TEMPORE JUDGMENT







SMUTS J: [1] In
this application the applicant has approached this Court for an order
declaring that she is a Namibian citizen by birth as contemplated in
Article 4(1(b) of The Namibian Constitution in paragraph 1 of the
notice of motion. In paragraph 2 she seeks an order declaring that
she is entitled to obtain citizenship of another sovereign country
without the need to renounce her Namibian citizenship by birth and in
paragraph 3 an order declaring that s 26 of the Namibian Citizenship
Act, 14 of 1990 does not apply to persons who hold Namibian
citizenship by birth. Section 26 precludes Namibian citizens from
also being citizens of other countries. But it does so subject to the
provisions of the Act or any other law.







[2] In the alternative to paragraph 3,
the applicant seeks an order declaring s 26 of the Namibian
Citizenship Act unconstitutional and of no force and effect. The
applicant also seeks costs against the respondents.







[3] The Permanent Secretary of the
Ministry of Home Affairs and Immigration filed an answering affidavit
as did the Attorney-General. Many of the facts which are raised in
the founding papers are not properly put in issue. What emerges and
is clear to me concerns the treatment which the applicant was
subjected to. She was required to leave the Republic of Namibia to
legalise her stay or face deportation despite the fact that she is
born in Namibia and had been provided with a Namibian birth
certificate issued to her on 2 March 2010. This application was in my
view necessitated because of the conduct of Ministry officials. The
applicant was entitled to bring an application and in particular to
seek the relief set out in paragraphs 1 and 3 of the Notice of
Motion.







[4] In view of what is stated by the
Attorney-General, I agree that it would not be appropriate for this
Court to make an order in terms of paragraph 2 of the notice of
motion. I accordingly decline to do so.







[5] In view of the decision of Maritz,
J (as he then was) in Thloro v Minister of Home Affairs 2008
(1) (NR) 97 (HC), it will be not necessary for me to grant the
Constitutional relief sought. He held that there is an automatic
acquisition of citizenship for those born in Namibia. They cannot be
deprived of that, even if they have acquired citizenship of another
country. The prohibition contained in s 26 is subject to the Act and
other laws. The latter category includes the Constitution which
entrenches the right to citizenship to those born in Namibia. I
respectfully agree with the approach of Maritz, J in that judgment
which I am also bound to follow (in the absence of finding that it
was clearly wrong; on the contrary, it is in my view, correct). It
would appear from the Attorney-General’s affidavit that this
approach has also been accepted by the Government. Ministry officials
need to act in accordance with the legal advice of the
Attorney-General.







[6] It accordingly follows that the
Constitutional relief sought would not be required. This was also
accepted by Mr Tjombe who has appeared on behalf of the applicant. It
is however clear that the applicant is entitled to the relief sought
in paragraph 1 and 3 of the notice of motion.







[7] As far as costs are concerned, I
asked Ms Koita on behalf of the respondents to address me on the
issue. It is clear from the facts that it was necessary for the
applicant to apply for the relief, given the treatment she was
subjected to, especially in view of what is stated in the urgent
application attached to the replying affidavit.







[8] Ms Koita rightly conceded that
costs are within my discretion. I have no hesitation in exercising
that discretion in favour of the applicant. She was entitled to seek
at least the relief set out in paragraphs 1 and 3 of the notice of
motion. The treatment meted out to her demonstrated the need for her
to do so. Given the fact that the application was opposed, this would
entitle her to her costs as she was substantially successful. I
decline to make any special order, despite the treatment to which she
was subjected which warrants censure.







[9] I accordingly make the following
order:







1. Declaring that the applicant is a
Namibian citizen by birth as contemplated by in Article 4(1)(b) of
the Namibian Constitution.







2. Declaring that section 26 of the
Namibian Citizenship Act, 14 of 1990 does not apply to persons who
hold Namibian citizenship by birth.







3. Directing the respondents to pay
the costs of this application.







___________________



SMUTS, J



ON BEHALF OF THE APPLICANT MR N.
TJOMBE



Instructed by: NORMAN TJOMBE LAW
FIRM











ON BEHALF OF THE RESPONDENTS MS T
KOITA



Instructed by: GOVERNMENT ATTORNEY