Nwafor v The Minister of Home Affairs and Others

The appellant, a Nigerian national born in 1965, obtained a permanent residence permit on 22 January 2004 based on his marriage to a South African citizen, Ms Vilankulo, on 25 April 2003. He was granted South African citizenship by naturalisation on 13 October 2009. On 13 April 2016, the Minister of Home Affairs notified the appellant of his intention to deprive him and his minor children of their citizenship on grounds that: (1) the appellant had obtained his permanent residence permit by false representation, having concealed that he was still married to Ms Nwafor (whom he married in Nigeria on 1 March 2003) when he married Ms Vilankulo; (2) Ms Vilankulo was a minor at the time of their marriage; and (3) the permanent residence permit was issued under the repealed Aliens Control Act after the Immigration Act had already come into effect. After receiving the appellant's representations, the Director General (acting under delegated authority) decided on 2 August 2016 to deprive the appellant and his family of their citizenship. The appellant launched a review application in the High Court under PAJA. The matter was initially referred to oral evidence by Constantinides AJ, but the parties later agreed to proceed by way of application without witnesses. Potterill J dismissed the review application on 27 June 2019 and subsequently refused leave to appeal.

• Whether the appeal had reasonable prospects of success to warrant the granting of leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013
• Whether new points of law could be raised for the first time on appeal, specifically: (i) the validity of the delegation of authority from the Minister to the Director General; (ii) the collective deprivation of citizenship of minor children and the appellant's wife; and (iii) the validity of the abandonment of the order referring the matter to oral evidence
• Whether the deprivation of citizenship was conducted in accordance with the principles of administrative justice and natural justice
• Whether a supplementary affidavit filed without leave of court should be considered
• Whether the abandonment of a procedural order referring a matter to oral evidence required compliance with Rule 41(2) of the Uniform Rules of Court

The application for leave to appeal was dismissed with costs, including costs of two counsel.

The binding legal principles established are: (1) Leave to appeal will only be granted where there are reasonable prospects of success as required by section 17(1)(a) of the Superior Courts Act 10 of 2013; (2) New points of law may only be raised on appeal in exceptional circumstances where: (a) the point emerges clearly from the undisputed facts; (b) the relevant facts have been fully canvassed; and (c) no prejudice will result to the other party; (3) Section 22 of the South African Citizenship Act 88 of 1995 permits valid delegation by the Minister of Home Affairs of the power to deprive citizenship to the Director General; (4) A procedural order referring a matter to oral evidence is not a final order and may be departed from by the court or by agreement of the parties without invoking the abandonment procedure under Rule 41(2) of the Uniform Rules; (5) Supplementary affidavits filed without leave of court are properly treated as pro non scripto; (6) Compliance with section 3(2) of PAJA, including notice of intended action and opportunity to make representations, satisfies procedural fairness requirements in citizenship deprivation proceedings; (7) New grounds of review cannot be raised for the first time in replying affidavits or on appeal.

The Court made several non-binding observations: (1) The fraudulent nature of the appellant's documentation could reasonably be inferred from the fact that he obtained a permanent residence permit under legislation that had already been repealed nine months earlier; (2) The so-called "divorce decree" relied upon by the appellant was in fact only a decree nisi that would not become absolute for three months, meaning the appellant was still married when he purported to marry Ms Vilankulo; (3) While matters of public importance may constitute "compelling reasons" under section 17(1)(a)(ii) to grant leave to appeal even where prospects of success are limited, this does not obviate the need to assess the merits of the appeal; (4) The appellant's wife could have brought her own review proceedings to challenge the deprivation of her citizenship; (5) The interests of children in citizenship matters should be considered separately, though this point was not properly before the court; (6) The principles from Plascon-Evans apply where there are disputes of fact in review proceedings and final relief is sought.

This case establishes important principles regarding: (1) the threshold for granting leave to appeal under section 17 of the Superior Courts Act; (2) the limited circumstances in which new points of law may be raised for the first time on appeal, particularly in administrative law matters; (3) the validity of ministerial delegations under section 22 of the South African Citizenship Act; (4) the distinction between final appealable orders and procedural interlocutory orders; (5) the application of PAJA's procedural fairness requirements to citizenship deprivation proceedings; and (6) the principle that parties cannot raise new grounds of review for the first time on appeal. The case reinforces that deprivation of citizenship based on fraudulent procurement of permanent residence permits is lawful where proper procedures are followed, and that administrative decision-makers may properly rely on delegated authority under enabling legislation.