Court name
Supreme Court
Case name
Minister of Home Affairs v Dickson and Another
Media neutral citation
[2008] NASC 13





















REPORTABLE


CASE
NO.: SA 34/2007






IN
THE SUPREME COURT OF NAMIBIA








In
the matter between
















MINISTER
OF HOME AFFAIRS



APPELLANT









and
















LAURENTIUS
DICKSON





SAROLINA
FREDRIKA DICKSON



FIRST
RESPONDENT





SECOND
RESPONDENT









CORAM: Shivute,
CJ, Strydom, AJA, Chomba, AJA





HEARD
ON:
31/03/2008





DELIVERED
ON:
24/10/2008













APPEAL JUDGMENT













CHOMBA, AJA:




  1. This unprecedented
    appeal is a sequel to a judgment handed down in the Court
    a
    quo
    pursuant to a notice
    of motion in which the two respondents herein had applied for the
    following orders to be made against the present appellant:









  1. Reviewing and correcting
    or setting aside the decision taken by the respondent during
    November 2003 rejecting the first applicant’s application for
    Namibian citizenship.









  1. Declaring the aforesaid
    decision unconstitutional and/or null and void.









  1. Declaring that the first
    applicant has been ordinarily resident in Namibia as the spouse of a
    Namibian citizen for two years prior to his application of (
    sic)
    Namibian citizenship.








4) Declaring that the
first applicant is eligible for the granting of Namibian citizenship
on the basis of his marriage to a Namibian citizen, namely the second
applicant.








  1. Prayers 5 and 6 were the
    usual run of the mill ones regarding, respectively, costs and
    further or alternative relief which the Court might deem fit. In
    the course of the proceedings, however, Ms Hancox, who was the
    respondents’ counsel, successfully applied for the second
    prayer to be amended by striking out the word “unconstitutional”.
    To make it neater, the words “and/or” which followed
    after the deleted word are also removed. The four above prayers
    were critical and formed the hub of the proceedings in the trial
    Court. They were all granted as prayed. In the appeal before us
    they were equally central to the integrity of the case.









  1. It is worthwhile
    alluding at this early juncture to an apparently important facet of
    this matter. In the course of the proceedings of the present
    appeal, it was mentioned that the first respondent was facing a
    threat of deportation from Namibia. It was stated that the
    enforcement of the deportation order made by the Minister was merely
    stayed for the purpose of facilitating negotiations relating to the
    first respondent’s citizenship application. However, on the
    basis of the prayers made in furtherance of the originating notice
    of motion as read with the orders handed down by the Court
    a
    quo
    (which orders will be
    reproduced in due time later on), the deportation order is not an
    issue in this appeal. In the event, any reference to it in the
    course of this judgment will merely be incidental.









  1. For the sake of
    convenience, I shall henceforth refer to the parties by the
    designations they bore in the Court
    a
    quo
    , which means that
    Laurentius Dickson will feature as first applicant, his wife,
    Sarolina Fredrika Dickson, as second applicant while the Minister of
    Home Affairs will be referred to as the respondent.






  1. Notwithstanding the fact
    that he filed a notice to defend the application commenced against
    him, the respondent never filed an answering affidavit.
    Consequently the facts as deposed by the first applicant in his
    affidavit supporting the notice of motion was, quite rightly,
    determined in the Court
    a
    quo
    to be undisputed. In
    summary those facts may be stated as follows:









  1. The first applicant is
    evidently a Tanzanian who was born in Dar-es-Salaam, Tanzania, on
    5
    th
    November 1964. As a young man in his mid-twenties, he embarked on
    an adventure the consequence of which was that he entered Namibia
    through the Caprivi region via Zambia. That was in May 1989. He
    did so in contravention of the Namibian immigration laws. When in
    Windhoek he, with the assistance of a man who spoke his language,
    Swahili, vainly tried to be registered as a refugee at the office of
    the United Nations High Commissioner for Refugees. This was not
    surprising because in his founding affidavit, he described himself
    as a seeker of a better life which he was unable to attain in his
    home country. In the circumstances there was no basis for any claim
    on his part to refugee status. Having failed to be so registered,
    he subsequently traversed the country and eventually found himself
    in Walvis Bay on the west coast of Namibia. He claims that he
    achieved this with the help of some persons we may figuratively call
    good Samaritans. Whilst in Walvis Bay, he, with the connivance of
    some other persons, fraudulently obtained a Namibian birth
    certificate. Thus armed, it was easy for him to masquerade as a
    Namibian in that he secured employment without being in possession
    of an employment permit, obtained a Namibian passport. By 1995, for
    some unexplained reason, he was even able to obtain a duplicate
    birth certificate.









  1. While still working in
    Walvis Bay, in 1990 he met his wife to be, one Sarolina Namases, a
    Namibian citizen. She was born in Walvis Bay on 29 October 1965.
    In February 1994, the two tied the knot and became Mr. and Mrs.
    Dickson. They have since raised a family of three children. Prior
    to that marriage, however, the first applicant had a child with
    another Namibian woman who has since passed on. The first applicant
    has lived in Walvis Bay all along since his arrival there.









  1. On 13 February 2001, the
    law caught up with him. Immigration officials arrested and detained
    him pursuant to section 42 of the Immigration Control Act, No. 7 of
    1993 (the Immigration Control Act). That section provides as
    follows:








“42
(1)(a) When a person who enters or has entered or is found within
Namibia, on reasonable grounds is suspected of being a prohibited
immigrant in terms of any provisions of this Act, an immigration
officer may –







(i) if such
person is not in custody, arrest such person or cause him or her to
be arrested without a warrant; and








  1. pending the
    investigations to be made in terms of subsection (4) by such
    immigration officer, detain such person or cause him or her to be
    detained in the manner and at the place to be determined by the
    Minister, for such period, not exceeding 14 days, or such longer
    period as the Minister may determine, not exceeding 14 days at a
    time.”












It is unnecessary at the
moment to reproduce the remaining provisions of the section. This
may be done in due course as need arises.








  1. Despite being
    temporarily released from custody in terms of subsection (3) of
    section 42 aforesaid, the first applicant was later prosecuted and
    on 25 June 2002, was convicted by a Walvis Bay magistrate of
    fraudulently obtaining a duplicate Namibian birth certificate and a
    Namibian passport. He was consequently fined N$4000.00. Two months
    later, he was served with a notice of application for authorisation
    to deport him from Namibia on the ground that he was a prohibited
    immigrant. This was followed up by an actual deportation order
    requiring him to leave Namibia by 6 September 2002. However, after
    protracted negotiations by his lawyers with the Government
    Attorney’s office, the deportation order was stayed apparently
    temporarily.









  1. The first applicant used
    the moratorium thus given to him in applying for registration as a
    Namibian citizen. He made the application pursuant to section 3 of
    the Namibian Citizenship Act, No. 14 of 1990 (the Citizenship Act),
    as read with Article 4(3)(a) of the Namibian Constitution. Article
    4(3)(a) provides an opportunity to foreigners to be registered as
    Namibian citizens if they comply with the following requirements,
    viz:









  1. marriage in good faith
    to a Namibian citizen; and









  1. being ordinarily
    resident in Namibia for two years subsequent to such marriage as a
    spouse of such citizen; and









  1. applying to become a
    citizen of Namibia.










    1. Section 3 pursuant to
      which the citizenship application was actually made is couched in
      the following terms:









"3(1) The
Minister shall, subject to the provisions of subsection (3), upon
application made in the prescribed form by any person who complies
with the requirements and conditions for the acquisition of
citizenship by marriage, issue to such person a certificate of
registration to that effect.








  1. Any
    person to whom a certificate of registration has been issued in
    terms of subsection (1) shall become, from the date of issue of such
    certificate, a Namibian citizen."












Again the rest of the
subsections of this section are not critical to this appeal and,
therefore, it is unnecessary to reproduce them at this stage.









    1. The application was
      addressed to the Ministry of Home Affairs. In due course, the
      first applicant received the following reply from that Ministry:









MINISTRY
OF HOME AFFAIRS



Department
of Civic Affairs



Private
Bag 13200



WINDHOEK



13/4/3-2000/03







Mr.
L. Dickson



P.O.
Box 2557



WALVIS
BAY







Dear
Mr. Dickson







Re: APPLICATION
FOR NAMIBIAN CITIZENSHIP BY MARRIAGE







The
subject matter above refers.







Kindly
be informed that your application for the above mentioned matter was
unsuccessful due to your unfavourable police record.







If
there are more queries, please do not hesitate to call this office.







Yours
faithfully







(signed)
Mrs. L.T. Kandetu



Deputy
Director



Aliens
Control, Citizenship & Passports”












  1. It was that rejection of
    the citizenship application which prompted the filing of the notice
    of motion from which these proceedings emanated. In the notice of
    motion proceedings the trial judge heard only Ms Hancox, counsel for
    the applicants. Mr. Swanepoel, counsel for the respondent, was
    unable to address the Court as he had received no instructions from
    his client. Thereupon the trial judge reserved judgment and in due
    course, having found in favour of the applicants, made the following
    orders:









  1. The decision taken by
    the respondent during November, 2003, rejecting first applicant’s
    application for Namibian




Citizenship is set aside.






  1. The aforesaid decision
    is declared null and void.









  1. It is hereby declared
    that first applicant has been ordinarily




resident in Namibia as
the spouse of a Namibian citizen



for two years prior to
his application for citizenship.








  1. It is hereby declared
    that first applicant is eligible for the




granting of Namibian
citizenship on the basis of his marriage to a Namibian citizen,
namely, second applicant.








  1. Respondent is directed
    to pay the costs of this application.








[14] The respondent was
not happy with the judgment and hence this appeal, which was
predicated on the following grounds:







2 The
learned judge erred when he found that the respondent’s refusal
to grant citizenship to the first applicant violated second
applicant’s constitutional rights to (a) reside and settle
anywhere in Namibia and (b) to leave and return to Namibia.









    1. The
      learned judge erred in finding that first applicant was not heard
      before the decision by the respondent was made.











    1. the
      learned judge erred in finding that the respondent acted
      unreasonably and that her decision had no plausible justification
      and she failed to take into account relevant information.











    1. Although
      the learned judge correctly held that first applicant’s
      unfavourable police report was a factor to be taken into account,
      the learned judge erred in finding that the respondent placed too
      much weight on this factor; the learned judge erred in not finding
      that for this reason alone the respondent, under the circumstances,
      was justified in refusing to grant the first applicant Namibian
      citizenship.”













THE ISSUES WHICH AROSE IN
THE APPEAL




  1. Taking into account all
    the written heads of arguments which the parties filed, together
    with the oral submissions made by the parties' legal representatives
    in the course of hearing this appeal, I discern the following issues
    to have been raised which, therefore, need to be determined:









  1. Whether or not the first
    applicant, as a person who, in good faith, was married to a Namibian
    citizen, was ordinarily resident in this country subsequent to such
    marriage.









  1. Whether or not the
    status he might have acquired in consequence of such marriage
    entitled him to be registered as a Namibian citizen.








(3) Whether or not in
considering the first applicant’s citizenship application and
subsequently rejecting it, the Minister of Home Affairs (the
Minister) breached the
audi
alteram partem
rule of
natural justice.







(4) Whether or not by
rejecting the application as stated in (3) above, the Minister
violated the second applicant’s fundamental freedom to reside
and settle in any part of Namibia, or the freedom to freely leave
from and later to return to Namibia.







(5) Whether or not in
rejecting the said application the Minister violated both applicants’
right to private and family life.







(6) Whether or not in
considering the first applicant’s said application the Minister
failed to take into consideration matters which he should in fact
have taken into consideration, or whether he took into account
information which he should not have taken into consideration.







The foregoing list is not
intended to be exhaustive. Should it become necessary, there will be
need to consider any other pertinent issues.







EVALUATION OF THE
ISSUES




  1. I shall deal with the
    foregoing issues seriatim save that, since the first two are
    interrelated, it is convenient to treat them together. To this end
    the first two issues may be compounded into the following question.
    Was the first applicant ordinarily resident in Namibia at the time
    of submitting his citizenship by marriage application and had he, at
    that time, acquired the right to be registered as such citizen?









  1. In answering the
    preceding question, let me start by stating the palpably undeniable
    fact: the first applicant’s physical presence in Namibia since
    the time of entry into the country. According to the evidence in
    his founding affidavit as buttressed by the submissions made on his
    behalf by Mr. Tjombe, the first applicant had resided in Namibia
    continuously from 1989 until 2003 when his application for
    citizenship was rejected. That was a total of some fourteen years.
    Of this total, he resided in Namibia for more or less nine years as
    a person who was married to a Namibian citizen. It is equally an
    indisputable fact that his marriage to the second applicant was
    contracted in good faith. However, the question, which still
    remains to be answered, is whether on those bald facts the first
    applicant can be said to have been ordinarily resident in Namibia.
    Secondly, can it be incontestably claimed that in consequence of the
    foregoing, he had acquired the constitutional right to be accorded
    Namibian citizenship by marriage?









  1. This compound issue was
    hotly debated by both sides. Mr. Tjombe contended for a number of
    reasons that the first applicant was ordinarily resident in Namibia
    at the material time. One such reason was that the law of Namibia,
    as expressed in the Immigration Control Act and the Citizenship Act,
    did not define the term "ordinarily resident". Therefore,
    according to Mr Tjombe as I understood him, the term should be
    interpreted to mean the place which a person would habitually return
    to after his/her travels, a place one would call home. He
    distinguished that term from the word "residence" which,
    according to him, means the place marking a person’s physical
    presence at any given time. In offering that definition of the term
    "ordinarily resident", Mr. Tjombe relied on the case of
    Commissioner for Inland
    Revenue v Kuttel
    1992
    (3) SA 242(A)
    , at
    pages 247 – 248. Extending his contention by analogy, Counsel
    referred to section 22 of the Immigration Control Act which in terms
    of clause (c) of subsection (1) vests Namibian domicile in a
    foreigner who is ordinarily resident in Namibia by virtue of getting
    married to a Namibian citizen. He asserted that the said term as
    used in that clause could not entail a requirement of lawful
    residence especially when it is juxtaposed with clause (d) of the
    same subsection which accords Namibian domicile to foreigners other
    than those married to Namibian citizens. The latter clause requires
    that in relation to such other foreigners, their residence in
    Namibia should be lawful. For the sake of clarity, it is necessary
    to reproduce clause (d). It states:








(d) in
the case of any other person, he or she is
lawfully
resident

in Namibia, whether before or after the commencement of this Act and
is so resident in Namibia, for a continuous period of two years."
(The emphasis is mine)












  1. As I understood him, Mr
    Tjombe argued that it was not by accident that in the provision
    relating to ordinary residence there was no reference to lawful
    residence. He, in this regard, also referred to sub-article (5) of
    Article 4 of the Namibian Constitution, which, in addition to
    requiring that an applicant for citizenship by naturalisation should
    be ordinarily resident in Namibia, also requires legality of
    residence, among other requirements.









  1. Still furthering his
    argument on this issue, Counsel prayed in aid of it by citing the
    case of
    Swart v Minister of
    Home Affairs
    , Namibia
    1998 (3) SA 338 (NmHC),
    at 344H, where Maritz AJ,
    as he then was, stated the following:








Given
the historical background within which our Constitution was framed,
it had to address the adversity of origin of all Namibia’s
people to bring about one nation under a common citizenship –
accommodating everyone with a rightful claim to such citizenship and,
at the same time, affording others the opportunity to become
Namibians should they meet certain criteria.







The
purpose of chapter 2 of the Constitution is to define the qualifying
criteria relating to those persons who are automatically Namibian
citizens by operation of law (citizens by birth and by descent);
those who may by right claim to become citizens (citizens by marriage
and by registration); and those who may otherwise acquire such
citizenship (by naturalisation or by conferment under an Act of
Parliament)."












  1. Counsel submitted, and
    quite correctly so, that that case spelt out the different ways in
    which Namibian citizenship could be acquired, and how one category
    of citizenship could be differentiated from another. I find nothing
    controversial in
    Swart’s
    case as it only sets out what the law promulgates. In fact
    Swart
    spells out one cardinal point: it declares that the Constitution
    accommodates everyone into citizenship if they have a “rightful
    claim” (in the case of those who qualify by reason of birth or
    descent), or in the case of others, if they meet the necessary
    “criteria.”










    1. In wrapping up his
      argument on this issue, Mr. Tjombe concluded that once an affected
      person satisfied the requirements of Article 4(3) of the Namibian
      Constitution, the Minister had no discretion in the matter; he had
      to register such person as a Namibian citizen. A discretion could
      only be exercised in the case of applications for citizenship by
      naturalisation, he argued. That was because in that case, criteria
      such as health, morality, security or legality of residence may be
      prescribed as requisites for eligibility. The rationale of the
      argument was that in such a case, the Minister could use his or her
      objective judgment as to the fitness of the applicant to be so
      registered. In Mr. Tjombe’s view, the lawmaker put a
      foreigner married to a Namibian citizen (as mentioned above) in a
      more favourable situation in contrast to other seekers for Namibian
      citizenship.









In the result, he
strongly asserted that the first applicant was ordinarily resident in
Namibia at the time of applying for registration as a citizen, and
that that was on the ground that he was married to a Namibian citizen
in good faith.









    1. In considering the
      undoubtedly strong submissions made by Mr. Tjombe, I propose to
      start by inquiring into the state of the law as it was before the
      current Constitution of Namibia, the Citizenship Act and the
      Immigration Control Act were put in place. In particular, I pose
      the question "What was the status of an illegal immigrant as
      regards his domicile and ability to acquire the citizenship of his
      host country?"









I pose this question
because the first applicant in this case is a self-confessed illegal
immigrant to Namibia. As we have seen, he entered Namibia illegally
in 1989; he at one time unsuccessfully attempted to be registered as
a refugee in Namibia; but determined to continue his residence in
Namibia, in September 1989 he fraudulently procured a Namibian birth
certificate. By the latter action, he was enabled to, and did, later
obtain an identity card and eventually a Namibian passport. Needless
to say that after those illegal achievements, he became an impostor
and masqueraded as a Namibian citizen for more or less twelve years
until he was detained by the immigration officials in February 2001.









    1. Before the independence
      of Namibia the statute law, which governed the issue of acquisition
      of citizenship, was the South African Citizenship Act, No. 44 of
      1949. By that Act any foreigner living in South West Africa (now
      Namibia) and who met the requirements of that Act became a South
      African citizen. However, there is no need to examine the
      provisions of that Act because at the attainment of Namibia’s
      independence, it was repealed and replaced by this country’s
      own Citizenship Act. Unfortunately, the latter Act does not contain
      provisions which can throw a helpful light on the question posed in
      the preceding paragraph. I shall consequently consider only the
      position under the common law, because, as I shall presently show,
      that law does deal with the matter at issue.











    1. The learned author, C.F
      Forsyth, states the following in his work entitled
      Private
      International Law: the modern Roman and Dutch Law including the
      jurisdiction of the Supreme Court
      ,
      3rd
      ed., at pages 119, 122 and 130:









III Domicile
Proper: The types of Domicile



Our
common law knows three types of domicile:
domicile
of choice –
which
may in certain factual circumstances be acquired by persons of full
capacity by deciding to settle in a certain country – the
domicile
of dependence –
which
is the domicile assigned by law to a wife or minor child – and
the
domicile
of origin –
which
is the domicile of a parent (the husband when legitimate, the mother
otherwise) assigned to a child upon birth and which plays a
controversial gap-filling role when neither a domicile of choice nor
a domicile of dependence is operative.







IV Domicile
of Choice



At
common law a domicile of choice is acquired by an independent person
with capacity to acquire it, when he or she fulfils the
factum
requirement
of lawful residence within the country and concomitantly has the
necessary
animus,
the
intention to remain permanently (or possibly indefinitely) in that
country. The Domicile Act 1992, in section 1(2), however, simply
provides that domicile of choice is ‘acquired by a person when
he is lawfully present at a particular place and has the intention to
settle there for an indefinite period.’ Although the statute
talks of ‘lawful presence’ and the common law of ‘lawful
residence’, for reasons given below, this is not believed to be
a significant difference.







Under
both common law and the statute
animus
and
factum
must
both exist and they must exist concomitantly at some point in order
for a domicile of choice to be acquired.”













    1. In regard to the factum
      component of the domicile
      of choice, author
      Forsyth
      continues as follows:









Factum:
the requirement of residence



At
common law the term residence used here, although commonplace in
decided cases, is a misnomer. For the purposes of the law of
domicile it means simply lawful physical presence; it does not bear a
technical meaning such as it has in other branches of the law. The
Domicile Act 1992 speaks simply of ‘lawful presence’ and,
it is submitted, this is the same concept as used in common law.
This is precisely what the Law Commission had in mind in recommending
the use of ‘lawful presence.’







The
residence must, of course, be lawful. The illegal immigrant cannot
acquire a domicile in the country he has chosen.”













    1. The learned author
      further continues at page 130 as follows:









The
domicile of deportees and those who, if resident, are unlawfully
resident in the country of choice.



Here
the position is relatively simple. In order to acquire a domicile of
choice in a country, the
propositus
must
be lawfully resident there; if his residence depends on having to
evade immigration authorities and continuing to evade the police, or
other authorities seeking to eject him from the country, then he
cannot acquire a domicile in that country, notwithstanding the
existence of
animus
manendi
and,
of course, his physical presence there.”












  1. It is necessary to
    comment here that in terms of Article 140 of the Namibian
    Constitution, all laws which were in force in Namibia immediately
    before independence continued to be in force after independence
    until they are repealed or amended by an Act of Parliament, or until
    they are declared unconstitutional by a competent Court. Most of the
    laws thus saved were South African for historical reasons which it
    is unnecessary to delve into for the purpose of this judgment.
    Suffice it to state, however, that since Namibia is now a sovereign
    state, no South African legislation enacted after independence can
    apply to Namibia. For this reason, it is otiose to discuss the
    South African Domicile Act of 1992 referred to in the above
    quotation from Forsyth’s book. On the other hand, the common
    law position which that author has expounded is the same that
    obtains in Namibia.









  1. Admittedly, the
    foregoing extracts Forsyth's book do not deal with citizenship
    (which is the main issue
    in
    casu
    ), but they relate to
    domicile. However, except in relation to honorary citizenship (see
    section 6 of the Citizenship Act) and citizenship by birth and that
    acquired by descent (for which see Article 4(1) and (2) of the
    Namibian Constitution), domicile is a perquisite before acquisition
    of Namibian citizenship, but domicile is itself not attainable
    unless it is preceded by lawful residence in the country of choice.
    Therefore, it may be said that residence is the stepping-stone to
    the acquisition of citizenship. Hence persons eligible for
    registration as citizens by marriage, by registration and by
    naturalisation are those who have been ordinarily resident in
    Namibia for a prescribed period of time. (
    vide
    subarticles (3), (4) and (5) of Article 4 of the Namibian
    Constitution). If in order to acquire the latter citizenships one
    has to previously be domiciled in Namibia, which entails prior
    lawful residence therein, it must follow, in my opinion, that what
    Forsyth states in his book as extracted above applies to citizenship
    aspirants as well.










    1. From the foregoing it
      is beyond peradventure that at common law an illegal immigrant
      cannot, as long as he continues to be unlawfully resident in the
      country of choice, acquire the domicile of choice of that country.
      Consequently, since, except in the case of citizenship by birth and
      by descent as well as honorary citizenship, residence is the
      stepping stone to the eventual acquisition of other citizenships,
      it must be equally true that an illegal immigrant can never, for as
      long as his or her residence in the host country remains unlawful,
      acquire the citizenship of that country.










  1. The next question I pose
    is whether the common law position has been altered by the coming
    into existence of the Namibian Constitution and the consequential
    enactment of the Namibian Citizenship and Immigration Control Acts.









  1. There is a cardinal
    presumption in the Roman-Dutch law that the legislature does not
    intend to alter the existing law more than is necessary. In his book
    titled
    Interpretation
    of Statutes
    ,
    author G.E. Devenish deals with that presumption. He states the
    following in the 1996 second impression of his 1992 edition at page
    159:








The
Legislature does not intend to alter the existing law more than is
necessary.



21
The common law



This
is a seminal presumption which has been applied in innumerable cases.
It is the most fundamental of the presumptions since many of the
others are merely axiomatic extrapolations of it…”












He
then goes on at pages 160 to 161 and states:











“…The
courts have to a lesser or greater degree endeavoured to provide, in
effect, a common law bill of rights… Thus in terms of this
presumption a Court will require a directive in clear language,
either by express or necessary implication, before ruling that the
legislature intended a significant departure from the common law.
Therefore, statutes should, as far as possible, be construed ‘in
conformity with the common law rather than against it’ and it
cannot be assumed that merely because the statute creates a new
obligation and prescribes a means of enforcing that obligation, the
ordinary remedies are excluded.
However,
if it is categorically clear from both the language and the import of
the statute that it is designed to alter the common law, then full
effect will be given to this object
.
Alteration
of the common law by a statute must either expressly say that it is
the intention of the legislature to alter the common law, or the
inference…must be such that we come to no other conclusion
.
Our
courts require clear and unequivocal language to effect a change to
common law
.”
(Emphasis supplied).











  1. In a number of cases
    judges have made similar references to the same presumption.
    Froneman AJA had the following to say in the case
    Fedlife
    Assurance Ltd v Wolfaardt

    2002 (1) SA 49 (SCA)
    at page 66:








The
judge in the Court below characterised the issue to be decided in
broad and general terms as ‘whether or not the ordinary civil
courts, having regard to the LRA, retained their jurisdiction to
adjudicate common-law contractual breaches of agreements of
employment.’ From what I have already stated it should be
clear that I consider the issue to be much narrower and more
specific. He also set store by the fact that there was no express
exclusion in the Act of the common-law claim to damages and that the
presumption against taking away existing rights operated against an
interpretation that the Act impliedly did so. In my view, these
considerations are misplaced.
The
Act does not purport to change the pre-constitutional common law by
expressly mentioning each and every aspect of it that it wishes to
change
.
It deals with specific issues and states expressly what the law now
is in regard to those issues.
To
determine to what extent the common law was changed one has to
compare these express provisions with what the common law was and
determine the extent of the changes wrought by the Act
.
(The underlining is mine).












  1. It is, consequently,
    also trite law that a statute which is intended by Parliament to
    change the common law or an existing established principle of law
    must employ clear, express and unambiguous language in order to
    achieve that goal. The law goes further and states that an
    alteration brought about by statute may also be inferred by
    necessary implication. Furthermore, it provides that the presumption
    that the legislature does not intend to alter the law more than is
    necessary is to be invoked only in the event of ambiguity in the
    statute. To this end, Trengove, JA made the following pronouncement
    in
    Glen Anil Finance (Pty)
    Ltd v Joint Liquidators, Glen Anil Development Corporation Ltd (in
    Liquidation)
    1981
    (1) SA 171(A)
    at
    pages 181H to 182A-B:








'It
is a sound rule to construe a statute in conformity with the common
law rather than against it, except where or in so far as a statute is
plainly intended to alter the course of the common law.' Now it is
clear from the authorities that in our law, as in English law, the
presumption that a statute alters the common law as little as
possible is to be relied on only in the case of ambiguity in the
statute and even then it may have to compete with other secondary
canons of construction, as Lord SIMON was at pains to point out in
the following passage in his dissenting speech in
Maunsell
v Olins

(1975) 1 All ER 16 at 28 - 29
:







Whatever
subsisting scope any canon of construction may have, whereby there is
a presumption against change of the common law, it is clearly a
secondary canon…of assistance to resolve any doubt which
remains after the application of 'the first and most elementary rule
of construction' that statutory language must always be given
presumptively the most natural and ordinary meaning which is
appropriate in the circumstances. Moreover, even at the stage when
it may be invoked to resolve a doubt, any canon of construction
against invasion of the common law may have to compete with other
secondary canons. English law has not yet fixed any hierarchy
amongst the secondary canons; …’”












  1. It is necessary also to
    refer to Article 66 of the Namibian Constitution, which provides as
    follows:








Article
66 Customary Law and Common Law







  1. Both
    the customary law and the common law of Namibia in force on the date
    of Independence shall remain valid to the extent to which such
    customary or common law does not conflict with this Constitution or
    any other statutory law.








  1. Subject
    to the terms of this Constitution, any part of such common law or
    customary law may be repealed or modified by Act of Parliament, and
    the application thereof may be confined to particular parts of
    Namibia or to particular periods.”










[36] In
effect the foregoing constitutional provision cements the fact that
the common law and customary law of Namibia existing at the date of
Independence continue to be part of the law of Namibia provided that
it does not conflict with statute law; and that such common law and
customary law may be repealed or amended by statutory law.







[37] As regards domicile,
the logical question which must be considered is whether the
Immigration Control Act has altered the established common principle
of common law which, as we have seen, states that an illegal
immigrant can never acquire a domicile of his or her host country as
long as his or her residence therein remains unlawful. According to
the common law, therefore, the Namibian Parliament can only be said
to have changed that established principle if, in enacting the
Immigration Control Act, it had employed a clear and unambiguous
language to that effect. In other words, did Parliament in fact
enact, in clear and unambiguous language or by necessary implication,
that an illegal immigrant could, contrary to the provisions of the
common law, acquire Namibian domicile while he or she continued to be
unlawfully resident in Namibia? Based on the provisions of Article
66, a further question may be asked whether the relevant common law
as, in the context under consideration, in conflict with the
Immigration Control Act.







[38] The relevant part of
the aforementioned Act is Part IV and it is tilted “DOMICILE IN
NAMIBIA”. In this Part the provision which deals directly with
the matter at issue is to be found in section 22(1)(c) which states
as hereunder:







“22(1) For
the purposes of this Act, no person shall have domicile



in
Namibia, unless such person –







(c) is
ordinarily resident in Namibia and so resides therein, whether before
or after the commencement of this Act, by virtue of a marriage
entered into with a person referred to in paragraph (a) in good faith
as contemplated in Article 4(3) of the Namibian Constitution;”











  1. For clarity’s
    sake, I also reproduce hereunder Article 4(3)(a) of the Namibian
    Constitution. That Article falls under Chapter 2 which contains
    provisions dealing with citizenship. Again going directly to the
    pertinent part of it, the Article reads:








“Article
4 Acquisition and loss of Citizenship







(3)
The following persons shall be citizens of Namibia by Marriage:







(a) those
who are not Namibian citizens under Sub-Article (1) or (2) hereof and
who:








  1. in
    good faith marry a Namibian citizen or, prior to the coming into
    force of this Constitution, in good faith married a person who would
    have qualified for Namibian citizenship if this Constitution had
    been in force; and









  1. subsequent
    to such marriage have ordinarily resided in Namibia as the spouse of
    such person for a period of not less than two (2) years; and









  1. apply
    to become citizens of Namibia.”










    1. It is indisputable that
      neither in section 22(1)(c ) nor in Article 4(3)(a) is there a
      clear and unambiguous language capable of being understood as
      permitting an illegal immigrant who is unlawfully resident in
      Namibia to acquire citizenship or domicile of this country. Such
      an intent to alter the common law is untenable even by necessary
      implication.











    1. Listening to Mr.
      Tjombe, I was left in no doubt that it was by inferential reasoning
      that he arrived at the conclusion that the Namibian immigration law
      did not require that an illegal immigrant should be lawfully
      resident in this country in order to be eligible for citizenship by
      marriage. In getting to that position he juxtaposed Sub-Articles
      (3)(a) and (5)(c) of Article 4 of the Namibian Constitution and
      compared the language used in them. To that end he invited this
      Court to note that while both of these Sub-Articles require that an
      applicant for citizenship should be ordinarily resident in Namibia,
      only Sub-Article (5)(c), but not (3)(a), requires legality of
      residence as an additional qualification. Similarly, as regards
      domicile, Counsel compared the language used in clauses (c) and (d)
      of section 22(1) of the Immigration Control Act. He noted that in
      clause (c) the requirement is for ordinary residence while in
      clause (d) it was for lawful residence. That to Counsel meant that
      the persons affected by Sub-Article (3)(a) or by clause (c) of
      section 22(1), respectively, do not have to be lawfully resident in
      Namibia because in neither of those two provisions is there any
      requirement for lawful residence.











    1. Those contentions are
      sound in logic, but they do not satisfy the principle that a
      statute intended to override a settled common law principle should
      express its intent by the use of clear and unambiguous language. I
      would go further and affirm that a close examination of the
      provisions which counsel relied on cannot, on a proper
      interpretation of law, support any suggestion that those provisions
      would, by necessary implication, amount to an alteration of the
      common law. This is especially so when one invokes the presumption
      against invasion of existing common law with abandon.











    1. In coming to the
      conclusion that neither section 22(1)(c) of the Immigration Control
      Act nor Article 4(3)(a) of the Namibian Constitution contains clear
      and unambiguous language suggesting that Parliament intended to
      override the common law within the context discussed in the
      preceding paragraphs, it is necessary that I make a further point.
      It is significant that in the Immigration Control Act Parliament
      included sub-section (1) of section 42. That sub-section, as is
      clear from its language, empowers an immigration officer to arrest
      and detain any person who enters or has entered Namibia or is found
      within Namibia if, upon reasonable grounds, such person is
      suspected to be a prohibited immigrant. The language the
      legislature employed in that subsection quite clearly, in my view,
      flies in the face of Mr Tjombe’s submission. The effect of
      his submission was that the legislature gave exemptive treatment to
      foreigners married to Namibian citizens as regards the requirement
      for lawful residence. One would have thought that if indeed the
      legislature had so intended it would have expressly so enacted.
      That could have been achieved by, for example, tacking a proviso to
      the subsection having the effect of excluding such persons from its
      ambit. To the contrary, the language used in that subsection, on a
      proper interpretation, means that all suspected illegal immigrants,
      without discrimination, are arrestable and detainable.











    1. Is the said common law
      exposition in conflict with the Immigration Control Act or Article
      4(3)(a) of the Namibian Constitution? In my understanding it is
      not. It stands to reason, in my view, that since neither section
      22(1)(c) nor Article 4(3)(a) has expressly or by necessary
      implication overridden the common law, any question of conflict
      cannot arise. In fact subsection (1) of section 42 of the
      Immigration Control Act underscores the consonance between the
      Immigration Control Act and the common law posture to the extent
      that that subsection spells out that prohibited immigrants are not
      welcome at any time.











    1. The other pillar of Mr.
      Tjombe’s argument was that there was an absence from both
      Namibian law and decided cases of the definition of the term
      "ordinarily resident" as used in Article 4(3)(a).
      Therefore he urged us to adopt the reasoning in the South African
      case of
      Commissioner for
      Inland Revenue v Kuttel, supra
      ,
      in which that term was used in reference “to the place to
      which a person would return after his travels; a place one would
      call home.” Counsel went on and averred that the first
      applicant had lived in Namibia for 15 years, that out of that
      period he had spent 10 years as a person who was married to a
      Namibian citizen and had begotten four children in this country.
      Therefore, he concluded that Namibia was the first applicant’s
      home and consequently that he was ordinarily resident in Namibia.
      Again, on the basis of logic I would defer to that powerful
      argument. But this issue is not about logic; we have to apply to
      it legal principles.











    1. It is a matter of
      interest to note that even in the Court
      a
      quo
      the question whether
      the term "ordinarily resident" meant lawful resident did
      arise. This is reflected at pages 114 to 115 of volume 2 of the
      record of appeal. The following dialogue is recorded there:









Court: Yes,
but I think one of the requirements that you referred to is also
mentioned in Constitution, where you claim citizenship on the basis
that you married to a Namibian citizen.







Hancox: Yes,
my Lord.







Court: Is
that your ordinary residence in Namibia?







Hancox: Yes,
My Lord.







Court: Indeed
that is one of the requirements that must be met. Now my question is
and I think you should, if possible, provide me with further
authority in this regard. And that is: whether to be ordinarily
resident in a country requires to be so resident lawfully?







Hancox: Yes,
My Lord. I don’t also at hand have any authority My Lord that
I can refer you to. I can of course (intervention)







Court: I
will give you the opportunity to find further authority on that
specific point.







Hancox: Yes,
My Lord. I have made a point of it and I will certainly do so…..”







Suffice it to state that
the Judge
a quo eventually
delivered his judgment but in it he did not attempt to assign a
definition to the moot term, although, equally by inference, he held
that the first applicant was ordinarily resident in Namibia.








  1. In the case of The
    Government of the Republic of Namibia v Dereje Demise Getachew
    ,
    Appeal Case No. SA 21/2006,

    (unreported) in which judgment was handed down during the
    March/April, 2008 session of this Court, we did give a definition to
    the term "ordinarily resident". For the same reason
    mentioned by Mr. Tjombe, namely the lack of such definition in the
    local law and precedent, we had, in trying to find the definition of
    that term, recourse to foreign case law, being fully aware that such
    law was not binding on this Court, but that it merely has a
    persuasive impact. In this connection we considered the dictum of
    Lord Denning in the case
    of
    Regina v Secretary of
    State for the Home Department, ex parte Margueritte

    (1982) 3 WLR 754,
    at page 757B – H.
    Before reproducing that dictum, it is apt to give a résumé
    of the facts of that case, because it has a resemblance to the
    present matter in that, like our case, Margueritte’s case
    concerned immigration law.









  1. Margueritte was a
    Mauritian who left his homeland when he was a young man. He entered
    the United Kingdom on an entry permit. However, when the validity
    of the entry permit expired, he remained in the host country for a
    prolonged period. Needless to mention that after the expiry of the
    permit’s validity his stay became unlawful. Eventually he got
    married to a fellow Mauritian but, unlike her new husband’s
    residence, the wife’s residential status was above board; it
    was at all times lawful. After the prescribed period of such
    residence she qualified to acquire British citizenship. When she
    lodged her application for registration as a citizen, hoping to
    benefit from the wife’s eligibility, Margueritte also
    submitted a similar application. To his dismay, the wife’s
    application was granted, but his was rejected. He applied to the
    High Court for judicial review of the Home Department’s
    negative decision, but he did not succeed. He then appealed to the
    Court of Appeal against the High Court decision. In a unanimous
    judgment the three member court which entertained the proceedings
    dismissed the appeal. Lord Denning, who presided over the
    proceedings and delivered the lead judgment, stated the following:








When
they were first used (i.e. the words ‘ordinarily resident’)
in the Act of 1948, there were no persons in existence such as
illegal entrants or ‘overstayers.’ So I do not think we
should construe the words ‘ordinarily resident’ as at
that time in 1948. It was in 1973 that those persons came into being
in England. I think those words should be construed in their new
setting. They have to be applied in a new setting and should be
construed accordingly. In this new setting the Immigration Act, 1971
contains specific provisions as to whether such a person is to be
regarded as ‘ordinarily resident’ here. There is a
general provision in section 33(2) of the Immigration Act, 1971 which
says:







It
is hereby declared that, except as otherwise provided in this Act, a
person is not to be treated for the purposes of any provision of this
Act as ordinarily resident in the United Kingdom or any of the
islands as at a time when he is there in breach of the immigration
laws.’"











His Lordship continued –







Although
that declaration is itself ‘for purposes of this Act’, I
think it is permissible to have regard to it when considering the new
section 5A of the Act of 1948. It is part of the new setting in
which the words ‘ordinarily resident’ have to be
construed.







Applying
it, I am of the opinion that an ‘illegal entrant’ or an
‘overstayer’ is not to be treated as ‘ordinarily
resident’ here at a time when he is in breach of the
immigration laws. Furthermore I think the broad principle we stated
in this court in
In
re Abdul Manan (1971) 1 WLR 859, 861
still
applies. I said:







The
point turns on the meaning of ‘ordinarily resident’ in
these statutes. If this were an income tax case he would, I expect,
be held to be ordinarily resident here. But this is not an income
tax case. It is an immigration case. In these statutes ‘ordinarily
resident’ means lawfully ordinarily resident here. The word
‘lawfully’ is often read into these statutes’.”












  1. This Court adopted Lord
    Denning’s dictum and we consequently held that being
    ordinarily resident in a country meant being lawfully resident
    therein. As in
    Margueritte's
    case, Getachew was unlawfully resident in Namibia and, like in
    Margueritte’s
    case, Getachew was a person married to a citizen of his country of
    choice. It was contended on Getachew’s behalf, as was the
    case in the present case, that he was ordinarily resident in this
    country. We held that he was not so resident. I feel that we were
    justified in adopting Lord Denning’s definition for the
    additional reason that our case was also an immigration case.
    Furthermore, the
    Shorter
    Oxford English Dictionary

    has,
    inter alia,
    the following definitions of the word "ordinary",
    viz:
    "conformable to order"; "regular". In the
    context of the Namibian immigration law, unlawful residence in
    Namibia cannot be said to be conformable to order, nor is it
    regular. If it were regular or conformable to order the same law
    would not have empowered immigration officers to arrest and detain
    any person who, on reasonable grounds, is suspected of being an
    illegal immigrant into the country. Since that is the case, how can
    a person who is unlawfully resident in the country be said to be
    ordinarily resident there? That is yet another reason why I feel
    that this Court was on the right footing in adopting Lord Denning’s
    definition of the term "ordinarily resident".









  1. I would also like to
    highlight the learned Law Lord’s allusion to income tax cases
    when he said effectively that the term "ordinarily resident"
    would be opportune in relation to an illegal immigrant in income tax
    cases, but not to an illegal immigrant in immigration cases. It is
    coincidental that the case of
    Commissioner
    for Income Tax v Kuttel
    ,
    (supra),
    on which Mr Tjombe relied in submitting that the first applicant was
    ordinarily resident in Namibia was also an income tax case. That is
    yet another reason why I still feel persuaded to hold that in
    immigration cases "ordinarily resident" implies lawful
    residence.









  1. In the light of all the
    foregoing considerations relative to issues (1) and (2), I would,
    without hesitation, reject Mr. Tjombe’s contentions despite
    their being spirited. I hold that the first applicant is not in the
    category of persons contemplated by Article 4(3)(a) of the Namibian
    Constitution. I consequently also hold that the first applicant was
    not, at the time his application for Namibian citizenship was
    rejected by the Minister of Home Affairs, ordinarily resident in
    Namibia. For that reason, I feel sure that at the time when he
    lodged the application for Namibian citizenship by reason of his
    marriage to a Namibia citizen, he was not eligible for registration
    as such. I specifically hold that the first applicant was caught by
    the common law provision which states that an illegal immigrant
    cannot, while his residence in a country of choice is unlawful,
    acquire that country’s domicile. It is evident from what I
    have stated earlier on in this judgment that no statute is presently
    in existence in Namibia which has, in clear and unambiguous language
    or by necessary implication, overridden or altered the common law on
    this point. By parity of reasoning, and especially since residence
    is the stepping stone to the acquisition of citizenship by marriage,
    I am reinforced in the view that the first applicant was, and is,
    not entitled as a matter of law, to be registered as a citizen of
    Namibia.









  1. The conclusion I have
    arrived at goes to the very root of this appeal. It is my firm and
    considered opinion that even if this Court were to find in the
    applicants’ favour on any one or more of the remaining issues,
    their case would not be advanced any further. Lack of eligibility
    for registration as a Namibian citizen on the part of the first
    applicant is, in my view, basic in the present type of case.
    Consequently it would be otiose to make a finding, for instance, on
    whether or not the first applicant was denied the right to be heard.
    Equally, what purpose would it serve to decide whether or not the
    second applicant’s fundamental freedom to reside and/or settle
    in any part of Namibia was violated? This last question would only
    be relevant in a deportation case where a spouse of a Namibian
    citizen has been ordered to leave Namibia.









  1. As I have stated right
    at the outset of this judgment, this appeal was not anchored on
    deportation. An examination of the prayers in the originating
    process, namely the notice of motion, does not, for example, show
    that any of them raised a deportation issue. Similarly, in the
    judgment of the Court
    a quo
    there was no substantive
    or other finding that the first applicant was wrongfully or
    unlawfully ordered to be deported. For that very reason, there is
    in this appeal no ground of appeal related to such question.









  1. In her written heads of
    argument Ms Katjipuka-Sibolile, who also represented the respondent
    in the current appeal, makes a point which is not at all
    unimportant. In paragraph 6 of those heads she effectively states
    that one does not need to be a Namibian citizen in order to reside
    in Namibia. That was a valid point. It was a point actually
    grounded in law. Section 22(1)(b) to (d) of the Immigration Control
    Act legalises the residence in Namibia of non-citizens, such as
    those ordinarily resident in Namibia, initially as citizens of the
    country but who have later ceased to be citizens; those falling in
    the category of clause (c) of that section (who have been discussed
    at length already in this judgment); and those who have ordinarily
    resided here for a continuous period of at least two years. Holders
    of permanent residence permits in accordance with section 26 of the
    Immigration Control Act are also entitled to limitless residence in
    Namibia as long as they comply with stipulated conditions. All that
    is necessary for non-citizens to do in order to reside and settle in
    Namibia indefinitely is to regularise their residential statuses.
    Needless to mention that all these persons can enter into marriage
    with Namibians and are entitled as such to privacy and family life.









  1. It is pertinent to add,
    in conclusion, that a government should have the liberty to choose
    which ones of the foreigners present in its country should or should
    not be granted citizenship, subject, of course, to the dictates of
    the Namibian Constitution, domestic legislation and fair
    administrative action. In this regard, I would again agree with
    that part of ground of appeal number 2.3 which states:








Although
the learned judge (of the court
a
quo
)
held that first applicant’s unfavourable police report was a
factor to be taken into account, the learned judge erred in finding
that the respondent placed too much weight on this factor; the
learned judge erred in not finding that for this reason alone
respondent, under the particular circumstances, was justified in
refusing to grant first applicant Namibian citizenship”.












  1. The first applicant’s
    conduct after illegally entering Namibia shows quite clearly that he
    was not satisfied with being only an unlawful resident. As we have
    seen, he went to the extent of fraudulently procuring a Namibian
    birth certificate, Namibian identity document and, to crown it all,
    a Namibian passport. In other words, he flagrantly flouted the law
    of Namibia. He aptly fitted into the personification exemplified by
    Forsyth, the author whose book has been referred to earlier on in
    this judgment, as a person who was hell bent on evading immigration
    and police authorities whom he knew would be seeking to eject him
    from Namibia once they discovered his true identity. He can also be
    likened to the figurative illegal immigrant depicted by Briggs, ACJ,
    in
    Smith v Smith
    1962 (3) SA 930 (FC)
    as having said to himself
    – "I will stay in Rhodesia (now Zimbabwe) if I can escape
    the attention of the authorities whose statutory duty is to deport
    me and who will at once do so if they learn the true facts about
    me". In the case of the first applicant, we only have to
    substitute "Namibia" for "Rhodesia". He only
    came to think about acquiring Namibian citizenship after the law had
    caught up with him. It is, therefore, no wonder that the Minister
    did not think of him as being a fit and proper person to be granted
    Namibian citizenship. Having made this observation, however, I must
    reiterate that the mainstay of my decision in allowing this appeal
    (which I am about to do) is the fact that the first applicant was
    not, at the material time, eligible for Namibian citizenship.









  1. Notwithstanding the
    overwhelming odds against him in the present circumstances, the
    first applicant has something which I must mention to his credit. He
    has lived in and served this country for several years. He came here
    as a young man and has spent the best part of his life in this
    country. Documentary evidence in the record of appeal shows that he
    was born in Tanzania in 1964; that he came to Namibia in 1989 when
    he must have been about 25 years of age; and that he has lived here
    virtually uninterruptedly since then. At the time this judgment is
    to be delivered, he will be in his mid-40s by age. It would appear
    also that he has been a good husband and father to his Namibian wife
    and children respectively. After his evidently lengthy absence from
    his native Tanzania, it could well be a great hardship for him to
    resettle there at this stage. The trauma to his wife and children
    arising from such relocation might be even worse. It is, therefore,
    hoped that this adverse judgment notwithstanding, the relevant
    authorities would accord a sympathetic reception to his possible
    application, if he cares to make one, for regularising his residence
    in conformity with the law.









  1. In the final analysis, I
    would allow this appeal, and in doing so make the following orders:









  1. The appeal is allowed.









  1. The order of the Court a
    quo
    is set aside and the
    following order substituted:








"The application
is dismissed."







3. Each party to the
appeal shall bear his or her own costs.

















_____________


CHOMBA,
AJA











I
concur

















________________


SHIVUTE,
CJ











I
also concur

















_______________


STRYDOM,
AJA













































COUNSEL
FOR THE APPELLANT


INSTRUCTED
BY






MS
U. KATJIPUKA-SIBOLILE


GOVERNMENT
ATTORNEY



COUNSEL
FOR APPLICANTS


INSTRUCTED
BY



MR.
N. TJOMBE


LEGAL
ASSISTANCE CENTRE