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CASE NO.: (P)A 323/2004SUMMARYMOSES MUYATWA MULOPOandMINISTER OF HOME AFFAIRSDAMASEB, J2004/1O/2tIMMIGRATION CONTRL ACT 17 OF 1993: ht to residence inNamibia established or not consideredIn an urgent application a parent without the right to residence inNamibia cannot, without more, claim the right to residence inNamibia by virtue only of their being a parent to a Namibian citizenchild.The rights of such children are not absolute and are subject toparental control. Applicant therefore failed to establish a prima facieright to residence in Namibia.

CASENO. A 323j2004IN THE HIGH COURT OF NAMIBIAIn the matter between:MOSES MUYATWA MULOPO APPLICANTversusMINISTER OF HOME AFFAIRS RESPONDENTCORAM: DAMASEB, J.Heard on: 2004.10.21Delivered on: 2004.10.21 (Ex tempore)RULINGDAMASEB. J.: This is an urgent application brought by the applicantto "interdict the respondent from in any way deporting andj or removingthe applicant from the Republic of Namibia andj or the jurisdictionborders of the above Honourable Court andj or detaining the applicant"pending the resolution of the review application to be brought against the

2same respondent to set aside a decision taken by the ImmigrationSelection Board refusing the applicant's application to renew hisresidence or work permit; a decision refusing the issuing of a permanentresidence permit to the applicant; and a further decision refusing issuingof a birth certificate to the applicant's minor child. Alternatively, that therespondent be ordered to consider the permanent residence permit.Further alternatively to renew the work permit and to consider issuing ofthe birth certificate within thirty days. Other relief is then sought in theevent the respondent fails to consider the above applications, but as partof the review.The applicant, a Zambian national, is married to one Musove Mukombaalso a Zambian national who is in this country on a temporary residencepermit. Her minor children, one of whom is with the applicant, areNamibians. The applicant is the stepfather of his wife's two minorchildren. It is alleged that the minor child born of the couple is entitledto a Namibian birth certificate but that the Namibian authorities refusedto grant the child a birth certificate. Applicant arrived in Namibia in1996 to take up a job with the New Apostolic Church of Namibia. He infact got a work permit for that job and which was successively reneweduntil July 2003. On 7 May 2003 he submitted it again for renewal. Heheard nothing from the authorities until 3 March 2004 when personnelof the Ministry of Home Affairs asked him to come and collect the letter

pertaining to his application. He went there and got it and was advisedtherein that his application was unsuccessful because there were othersuitably qualified Namibians. He then appealed and requested reasons.Why he requested reasons is not clear considering that he was on hisown version informed that there were other suitably qualified Namibiansto do the job. He then had a meeting with the then Permanent SecretaryMr Taapopi on or about the 25th of March 2004. The PermanentSecretary, according to the Applicant, told him that the reason for therefusal was that members of his congregation complained against him; afact never brought to his attention and in respect of which complaint hewas not allowed to make any representations.On 18 May 2004 he was again informed by personnel in the Ministry ofHome Affairs to collect a letter dated 29 April 2004. This letter informedhim his appeal was rejected and he was given 21 days to leave Namibia.He says he then sought legal advice. His lawyers wrote a letter of"appeal" to the Ministry again requesting reasons for the rejection of hiswork permit. Why he sought reasons again is not clear. His lawyers alsoinformed the authorities he would not leave the country as ordered.In paragraph 6.4 of the founding affidavit, the applicant says as follows:

4"6.4 I was advised and verily believed that until I had beengranted an opportunity to ascertain the nature of the allegationsand respond thereto, I would be entitled to remain in the country.I annex hereto a copy of the acknowledgment of receipt for theAppeal letter as referred to in paragraph 6.3 hereinabove."On 1 October 2004, according to the applicant, he received another letterfrom the Acting Permanent Secretary and Chairman of the ImmigrationSelection Board, through his employer, telling him to leave Namibia by22 October 2004. He says that only he was asked therein to leave, andnot his wife and the kids.A permanent residence permit he had applied for in early 1998 wasrejected without reasons on I October 1998 according to the applicant. Itappears he did nothing about it. He says he applied for a permanentresidence permit again in June 2004 and he has yet to receive a reply tothatapplication.Applicant says he is entitled to a permanent residence permit because hehas been in the country for over 8 years; his children are minors whohold Namibian citizenship and are entitled to his care; and his wife isunemployed and looks after the family.

~5Applicant says he is also entitled to renewal of his work permit becausethe refusal was not based on any valid and fair reasons and he was notallowed to present his case before the Immigration Selection Board. Hesays he has a legitimate expectation to renewal of the work permit andthat his employer has no suitable Namibian to replace him. He then setsout extensive grounds on which he says the refusal to renew his workpermit is reviewable, and which it is not here necessary to repeat.In respect of the interim relief the applicant makes the curious allegationthat to date he had not been given reasons why his work permit had notbeen renewed. Curious because on his own version he was told on twoseparate occasions what the reasons are. He may not agree or considerthem as valid reasons, but reasons they are and given to him they werethe last on 25th of March 2004. To quote from paragraph 5.2 of theapplicant's founding affidavit:") then had a meeting with the then Permanent Secretary of HomeAffairs, Mr N Taapopi on or about the 25 March 2004. At thismeeting I was informed that the decision to not renew my workpermit application was taken upon consideration of certaincorrespondence by members of my church congregation, andwherein certain allegations were made against me. I was neverinformed of the particulars of these allegations, nor was) able tostate anything in my defence."

6So it is clear from this that he was given certain reasons for the refusal.Applicant is required to establish, in order to obtain an interim interdict,(i) a prima facie right although open to some doubt (ii) a well groundedapprehension of irreparable harm if the interim relief is not granted andthe ultimate relief is eventually granted, (iii) that the balance ofconvenience favours the granting of an interim interdict and (iv) that hehas no other satisfactory remedy. Setlogelo v Setlogelo 1914 AD 221 to227; see also CB Prest "Interlocutory Interdicts" pages page 55 andfurther.I am prepared to accept that the applicant has made out a case of such aprima facie right in the sense of his right to a fair administrative actionwhich was breached on account of the decision to refuse renewal of hiswork permit without a valid reason.As regards the alleged right to be in Namibia on account of the fact thatthe minor children are Namibians I need to say only this. And that isthat the rights of citizen-children are not absolute. They aresubject to control by their parents. I wish to refer in this regard to thejudgment of the Zimbabwean Supreme Court in the matter of RuwodoNO v The Minister of Home Affairs and Others 1995 (7) BCLR 903 (ZS) perGubay CJ. I will only quote the passage in the head note. In that case,which is not very dissimilar to the present, the issue was whether the

7parents of a child who was a citizen of Zimbabwe were entitled by virtueof that fact to remain in Zimbabwe on the theory that it is important tokeep the family together."The Court observed that the rights of a citizen child under section22(1) are not absolute. They are subject to the qualification ofparental authority. A custodian parent has the right and duty toregulate the life of the child, which includes the right to chooseand establish its residence. It was so that any decision that Mwas to live with Mrs R in another country would effectivelyoverride his constitutional right to reside in Zimbabwe; but M,being a minor and therefore suffering from the disability that hismother exercised physical control over him, could not determinewhether to reside in one country or another. He had no ability tolive separately from her and could not independently exercise hisrights under scction 22( 1) of the Zimbabwe Constitution. Theprinciple laid down in Rattigan's case and Salem's case involvingthe extension of mobility rights to an alien spouse was based onthe need to avoid undermining the right of the citizen spouse tolive in Zimbabwe as a member of a family unit. In the instantproceedings the family unit was not under threat of split as aresult of the Chief Immigration Officer's decision.If thedeportation of Mrs R took effect, M together with his mother andbrothers and sisters would be relocated to the United States. Thefamily unit would remain intact."The ratio in the Ruwodo case commends itself to me as being applicablein the present dispute. Accordingly I find that the applicant has failed toestablish a prima facie right to residence in Namibia by virtue of himbeing a parent, without more, to a Namibian citizen-child.

8The respondent opposes the relief on two technical grounds; first nonjoinder and, secondly, lack of urgency; raised as points in limine in anaffidavit deposed to by Mr Mwatile, Acting Permanent Secretary of theMinistry of Home Affairs (who also happens to be the Chairman of theImmigration Selection Board), on behalf of the respondent Minister ofHomeAffairs.The crux of the firstpoint in limine is stated in the answering affidavit asfollows:"4.2 Immigration Selection Board (the Board) is established in terms ofPART V of the Immigration Control Act 7 of 1993 (the Act). TheBoard is tasked with the duty of considering appJications forpermanent residence permits, and employment permits andshould it so decide, to authorize the Chief Immigration Officer toissue any such Applicant any of these permits.4.3 Under subsection 3 of section 27 of the Act, the Board isauthorized to extend the period for which, or alter the conditionssubject to which, the work permit was issued.4.4 I am advised and respectfully submit that in terms of theprovisions of the Act, only the Board is authorized to consider anddecide on applications for the issuing of the above permits.4.5 It is further clear from the Notice of Motion that the relief in termsof prayer 4.1 relates to the renewal of a work permit. It is furtherclear that the relief claimed in prayer 4.2 of the notice of motionrelates to issuing of a permanent residence permit.

94.6 It is further clear that the decision not to renew or extend theperiod of validity of the permit held by Applicant was made by theBoard, and it is the Board that requested the Applicant to leavethe country.4.7 I am advised and respectfulIy submit that the Board should havebeen joined in these proceedings due to the direct and substantialinterest it has in this matter.4.8 I respectfulIy submit that as long as the decision of the Boardstands, his previous permit having expired, the Applicant isilIegally in Namibia and must be dealt with in terms of theprovisions of the Act."I agree. The application is fatal for non joinder. It is helpful to haveregard to section 25(1) of the Act which provides:"25. (1)(2)(a)There is hereby established a board to be known asthe Immigration Selection Board.The board -shall, subject to the provisions of -(i) section 26, consider applications forpermanent residence permits referred to insection 24(a);(ii) section 27, consider applications foremployment permits referred to in section24(b)(i);"Thus the applications that the applicant refers to for a permanentresidence permit and a work permit are applications such as arecontemplated in section 25 of the Act and in respect of which only theImmigration Selection Board is competent. The Immigration Selection

10Board is not subject to the direction of the Minister in the exercise of itspowers under sections 26 and 27 of the Act. It acts independently of theMinister although the Ministry provides it with administrative support.The decisions being challenged are those of the Immigration SelectionBoard which has not been joined in these proceedings.Relying on the case of Kerry McNamara Architects Inc v Minister of Works,Transport and Communication 2000 NR 1 at 5 C-D, Mr Thambapilaisubmits that the applicant be allowed to a postponement to join theImmigration Selection Board. That application is opposed. Not only isthe proper party not before Court, the Minister is sought to be interdictedfor a decision he did not take. In the Kerry McNamara case the partiescited were properly cited but others with an interest were excluded. Apostponement to, as it were, bring them on board was thereforereasonable in the circumstances. The case of Kerry McNamara is thusdistinguishable. In any event, the respondent having opposed theapplication for a postponement I am not satisfied that the applicant haslaid any basis for me to accede to the request for a postponement for thepurposestated.Even if I am wrong on the issue of non-joinder, the applicant has tosatisfy me that the relief sought is one of urgency. The respondent saysthe urgency is self-created.

11This Court has already warned that it will act sternly against parties whocome to this Court on self-created urgency. Maritz J in the case ofAlexander Richard Bergmann v Commercial Bank of Namibia Ltd, andDeputy Sheriff Windhoek, case no (P) A 336/2000 (unreported), deliveredon the 6th of November 2000, had this to say at page 4:"The Court's power to dispense with the forms and serviceprovided for in the Rules of Court in urgent applications is adiscretionary one. That much is clear from the use of the word"may" in Rule 6(12). One of the circumstances under which aCourt, in the exercise of its judicial discretion, may decline tocondone non-compliance with the prescribed forms and service,notwithstanding the apparent urgency of the application, is whenthe applicant, who is seeking the indulgence, has created theurgency either mala fides or through his or her culpableremissness or inaction. Examples thereof are to be found in theTwentieth Century Fox Film Corporation and Schweizer Reneke _cases* (*Twentieth Century Fox Film Corporation and Another vAnthony Black Films (Ply) Ltd, 1982 (3) SA 582 (WI and SchweizerReneke Vleismaatskappy (Edms) Bpk v Die Minister van Landbouand Andere, 1971 (1) PH Fll (T))."Applicant launched his application on 15 October 2004 to be heard onthe 21 st of October 2004. That is more than 7 months after the decisionof the Board. Even on a version of the facts most favourable to theapplicant, he knew as at the 1st of October 2004 that the decision was

12final, if he needed to be told that. Yet he launched his application only14 days later.Respondent says at paragraph 5.6 of his answering affidavit:"5.6 Applicant launched this application on 15 October 2004, that ismore than 7 months after the Board took its initial decision not torenew his work permit and more than 6 months after he becameaware of that decision. I respectfully submit that his was donemerely to delay Applicant's eventual departure from Namibia andto prejudice the Respondent in preparation and presentation of hiscase. I submit that this Court should not condone such behaviourfrom the Applicant.5.7 I respectfully submit that the Respondent was prejudiced, in thatthere could not be proper consultations between the office of theGovernment Attorney and ourselves as regards the claim by theApplicant. As stated before, I could only consult hurriedly with MrNarib, today and only for a period of one hour, after which I had toattend to another urgent matter. The Board also did not have theopportuni ty to be consulted."I agree.Whether one dates it back to the first notification or that of the 1't ofOctober 2004, the delay has the effect complained of by the respondentin the paragraphs that I have quoted.

13I therefore have no choice but to dismiss the application. Costs have notbeen asked for in the affidavit by Mr Mwatile. Mr Narib also did not askfor it in argument and none is granted.DAMASEB, J.

14ON BEHALFOF THE APPLICANT:Mr G ThampapilaiInstructedby:Chris Brandt AttorneysON BEHALFInstructedby:OF RESPONDENT:Government-AttorneysMr G Narib