- Home Affairs tried but failed to overturn an order that gave South African citizenship to a permanent resident.
- Judge Sni Mokose found the Minister and Director-General in contempt for ignoring the court’s order.
- The department has 15 days to comply. If they do not, the two officials could face imprisonment.
A foreign national married to a South African citizen has won another round in court. The High Court in Pretoria dismissed Home Affairs’ attempt to overturn an earlier order declaring him a South African citizen by naturalisation.
Judge Sni Mokose delivered the judgment, dismissing an application by the Minister of Home Affairs and the Director-General to set aside a September 2024 order that granted Mikhail Sakharov South African citizenship.
The court also found the Minister and the Director-General in contempt for failing to comply with that order. The judge warned they could face 90 days in prison if they do not comply within 15 days.
Long-running dispute
Sakharov was granted permanent residence in South Africa in December 2013. He had been married to a South African citizen for more than five years and believed he qualified for citizenship by naturalisation.
When he went to Home Affairs in November 2023, officials refused to accept his citizenship application. They told him he first had to apply for verification of his permanent residence permit.
After Home Affairs stood its ground, Sakharov turned to the High Court. In September 2024, the court ruled in his favour, declaring him a South African citizen by naturalisation. The court ordered Home Affairs to register his birth, issue a written recognition of his citizenship, and provide him with a South African identity document.
Instead of complying, Home Affairs launched an application nearly a year later to try to set aside the judgment. The department argued that the original application had not been properly served, and that Sakharov had not followed its internal verification process.
Court rejects Home Affairs’ arguments
Judge Mokose found that Home Affairs failed to give a good reason for the long delay in bringing the rescission application. The judge said the applicants had not fully explained why it took over 11 months to launch their application.
The court also rejected the department’s reliance on its Standard Operating Procedures. Judge Mokose said the department’s defence, based on non-compliance with its own procedures, had no merit.
The court referred to a previous Supreme Court of Appeal judgment which found that, once a person meets the requirements of the Citizenship Act, Home Affairs has no discretion in granting citizenship. The court also found that neither the Citizenship Act nor its regulations require permanent residence verification before a citizenship application can be processed.
Officials held in contempt
Sakharov also brought a counter-application, asking the court to hold Home Affairs in contempt for not complying with the September 2024 order.
Judge Mokose found that the department knew about the order but deliberately failed to carry it out. The judge stressed the importance of obeying court orders, saying that ignoring them is an attack on the rule of law.
The rescission application was dismissed with costs. The Minister of Home Affairs and the Director-General were found in contempt and ordered to comply with the earlier citizenship order within 15 days. If they do not, they could be sent to prison for 90 days.
The court also ordered Home Affairs to pay the costs of both the rescission and contempt applications on an attorney-and-client scale. This includes the costs of two counsel.
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