THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 1027/2020
In the matter between:

MBEMBA PIERRE MAHINGA
Appellant
and
MINISTER OF HOME AFFAIRS
First Respondent
DIRECTOR-GENERAL HOME AFFAIRS
Second Respondent

Neutral citation:
Mahinga v Minister of Home Affairs and Another (Case no
1027/2020) [2021] ZASCA 179 (17 December 2021)

Coram:
ZONDI, GORVEN and HUGHES JJA and MEYER and MOLEFE AJJA

Heard:
25 November 2021

Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
Supreme Court of Appeal website and released to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 17 December 2021.

Summary: Citizenship – whether the Minister of Home Affairs’ decision taken in terms
of s 8(1) of the South African Citizenship Act 88 of 1995 to deprive the appellant of his
citizenship was reasonable and rational – certificate of naturalisation was fraudulently
obtained on basis of marriage that was not bona fide – concealment of material facts.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Phahlane AJ and
Maumela and Makhubele JJ sitting as court of appeal):
Appeal is dismissed with costs including those of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Zondi JA (Gorven and Hughes JJA and Meyer and Molefe AJJA concurring)

[1] This is an appeal against the judgment and order of the full court of the Gauteng
Division of the High Court, Pretoria (Phahlane AJ, Maumela and Makhubele JJ
concurring) in terms of which it upheld the appeal by the respondents, the Minister of
Home Affairs (the Minister) and the Director-General Home Affairs (the Director-
General) against the judgment of the high court. In that judgment the high court
reviewed and set aside the Minister’s decision to revoke the appellant’s citizenship in
terms of s 8 of the South African Citizenship Act 88 of 1995 (the Citizenship Act) which
allows the Minister to deprive any South African citizen by naturalisation of his or her
South African citizenship in certain circumstances. The appeal is with the special leave
of this Court.

[2] On 10 June 2016 the Minister revoked the appellant’s South African citizenship
and simultaneously terminated his employment with the Department of Home Affairs
(the Department). The appellant approached the high court to review and set aside
both decisions. The high court reviewed and set aside the decision to deprive the
appellant of his South African citizenship. It did not review and set aside the decision
to terminate the appellant’s employment. The appellant did not challenge the high
court’s failure to make an order regarding the termination of his employment and
similarly it was not an issue before the full court. The reasonableness and rationality
of the Minister’s decision to terminate the appellant’s employment is, accordingly, not

before us and that much was conceded by the appellant’s counsel at the hearing of
this appeal.

[3] At the heart of this dispute, is the appellant’s complaint that the Minister’s
decisions to deprive him of his South African citizenship was unreasonable and
irrational. He contended that the Minister’s decision to deprive him of his South African
citizenship did not comply with s 8(1) of the Citizenship Act. Section 8(1) of the
Citizenship Act deals with deprivation of citizenship. It provides as follows:
‘The Minister may by order deprive any South African citizen by naturalisation of his or her
South African citizenship if he or she is satisfied that─
(a)
the certificate of naturalisation was obtained by means of fraud, false representation
or the concealment of a material fact; or
(b)
such certificate was granted in conflict with the provisions of this Act or any prior law.’

[4] The Citizenship Act expressly allows the Minister under specific circumstances
contemplated in s 8(1) to deprive a South African citizen of his or her citizenship.
Where such power is exercised, it must be done in a manner that is consistent with
s 36 of the Constitution as it limits a citizen’s right to citizenship under s 20.1 Section 20
of the Constitution is in line with Article 15(2) of the Universal Declaration of Human
Rights, which declares that ‘[n]o one shall be arbitrarily deprived of his [or her]
nationality . . .’.

[5] To address the issues raised in this appeal, it is necessary to set out the
circumstances in which the appellant acquired South African citizenship and how he
became employed by the Department.

[6] The appellant was born in Kinshasha, the Democratic Republic of Congo (DRC)
on 7 February 1969. There is a dispute as to when and how he arrived in South Africa
and what he did, once he was in South Africa. But it is common cause that he arrived
in South Africa in early 1996. He applied for and obtained a temporary permit in terms
of s 41(1) of the then Aliens Control Act 96 of 1991, which allowed him to reside in

1 Section 20 of the Constitution provides that ‘[n]o citizen may be deprived of citizenship’.

South Africa for the purpose of ‘asylum seeker’. This permit was subject to renewal
every three months from the date of its issue.

[7] On 5 October 1999, the appellant, while in South Africa, married a
South African, Ms Jacqueline Mfuku. On the basis of his marriage to Ms Mfuku on
10 December 1999, he withdrew his asylum application, and then on 23 August 2000,
applied for a permanent residence permit on the basis of the marriage. This was
granted on 14 June 2001. In July 2003, he applied for naturalisation on the basis of
his marriage to a South African. That application was granted on 1 October 2003. At
that stage, however, there were already problems in the marriage. Ms Mfuku was
allegedly seeing another man by the name of Orji. A child was born from this
relationship on 15 October 2003, some four months after his application for
naturalisation. He renounced his Congolese citizenship in 2015.

[8] After obtaining the permanent residence permit the appellant, in June 2004,
was appointed as an administrative clerk at the Refugee Reception Centre in Pretoria.
He was later promoted to the post of Assistant Director on 2 February 2006 and
confirmed in the Public Service on 3 April 2007. When he applied for employment at
the Department, the appellant submitted his curriculum vitae (CV) as part of his
application. Under work experience on his CV, the appellant stated, among other
things, that he was an employee of the Embassy of the Democratic Republic of Congo
in Pretoria as an administrative officer, for a two-year period from July 1998 to August
2000, and that he left the Embassy’s employ because he was retrenched.

[9] As a senior administrative officer, his responsibilities included: managing the
overall administrative functions; co-ordinating support services and supervising
personnel; drafting correspondence and documents; producing synthesis on
South African social, economic and political issues and their impact on the SADC
region; monitoring local media, writing press releases and managing information,
liaising with the media embassies and the Congolese community; handling queries
and ensuring that all visitors are alluded to and given the necessary courtesy; making
travel arrangements, facilitating VIP’s arrival and departures; providing support to the

consular sections in the assessment of visa applications and representing the Head of
the Mission (Chargé d’ Affaires) in the SADC Head of Mission monthly meetings.

[10] The manner in which the appellant acquired South African citizenship and his
employment by the Department had been under investigation by the Department at
least since 2007, following a complaint by an anonymous member of the public
addressed to the Department in a letter dated 17 September 2007. He was asked to
respond to the allegations in the letter, which he did in his undated response. He was
not told of the outcome of the investigations and the issue appeared to have died.

[11] Some four years later, in or about October 2011, the appellant was approached
by a certain Mr Joas Phala, Assistant Director: Physical Security of the Department.
Mr Phala had asked him to provide certain personal information, which he alleged was
for vetting purposes. The appellant refused to co-operate, unless he received a written
authorisation for the requested information. He did not receive the written
authorisation.

[12] Six years later and on 13 September 2013, the appellant received a letter from
the Department, written by M E Malatsi CD: Investigations and ADDG: Counter
Corruption and Security Services. The letter alleged that, upon a perusal of the
Movement Control System (MCS), the Department picked up a number of
discrepancies in his application for citizenship, such as when and how he entered the
Republic of South Africa (RSA), his application for asylum and its subsequent
cancellation, the legitimacy of his marriage with Ms Mfuku and false registration of
several children on his personal and salary system (Persal).

[13] The letter concluded that it was evident from the MCS and the appellant’s
Persal, that he was ‘an illegal foreigner, whose only two options to remain in the RSA,
as such, was to apply for asylum or to go into a marriage of convenience’, his
application was founded on misrepresentations, and that the spouse permit in support
of his citizenship application, was false.

[14] He responded to these allegations by a letter dated 27 September 2013. In
short, he denied all allegations of impropriety levelled against him. In para 55 of the
letter, the appellant stated:
‘. . .
55.1. I have never been an illegal foreigner in South Africa.
55.2. My asylum application was based on true-life persecution experiences. My asylum
claim was appropriately lodged and duly registered in 1996 first. DHA put me through a second
re-registration process in 1998.
55.3. The accompanied spouse permit was legitimate. My spousal relationship was based
on true love, good faith and genuine spousal relationship reinforced by shared dream, shared
family life and faithfulness and meant to last until death do us a part.
55.4. Only [Department] with the help of its information and records management systems
could shed light on how people that I never officially declared as being my children or being
connected to me ended up being linked to me. This is a serious distortion of facts and
misrepresentation of events that could tear family apart, put people’s lives in danger and
jeopardize children’s future if one does not know the tangible truth.
55.5. I have never obtained my temporary and permanent residence permits as well as my
naturalisation by misrepresentation. I have never simultaneously held two (2) permits under
different Acts administered by [Department]; though, legally permitted.
55.6. I have appropriately complied with processes and key relevant laws administered by
[Department] in terms of registration and documentation. I showed good cause in my 17 years
of residency in RSA. As far as the enabling provisions are concerned, I am and remain bylaw
a South African Citizen.’

[15] On 15 April 2016, the Director-General issued the appellant with a written notice
of his intention to deprive him of his South African citizenship. The notice invited the
appellant to make representations to the Director-General within 14 days from the
receipt of the notice. The Director-General raised a number of concerns about the
manner in which the appellant acquired South African citizenship. The notice to
deprive the appellant of his South African citizenship was based on four grounds:
‘42.1
Facilitating your entry and residence with a false permit obtained by misrepresentation,
you are guilty of the contravention of section 49(14) of the Immigration Act, 13 of 2002.
The offence carries a maximum penalty of 4 years or R80 000-00.

42.2
Fraudulently registering children on the PRS, you are guilty of section 31(1)(b) of the
Births and Deaths Registration Act, 51 of 1992. The offence carries a maximum penalty of 5
years or R100 000-00.
42.3
Obtaining citizenship by fraud you are guilty of the contravention of section 18 of the
South African Citizenship Act, 88 of 1995. The offence carries a maximum penalty of 84 years
or R160 000-00.
42.4
Applying for asylum fraudulently, you are guilty of the contravention of section 37(a) of
the Refugees Act, 130 of 1998.
The offence carries a maximum penalty of 4 years or R80 000-00.’

[16] By letter dated 12 May 2016, the appellant, through his attorneys, responded
to the Director-General’s letter of 15 April 2016. The letter stated:
‘2.
It is our instruction that there was a complaint lodged on 17 September 2007
(Placement of Foreign People in the sensitive unit of the Department) against our client. The
complaint in question was received on 21 November 2007 by our client and to which he
responded.
3.
On 13 September 2013 our client was re-investigated (Allegations of Impropriety
Regarding the Status of Mr. Mbemba Pierre Mahinga) and he further responded to the
investigation on 27 September 2013 directing same to the Acting Director-General: Counter
Corruption & Security Services.
4.
Our client was informed on the 20 October 2013 that the matter had been finalized by
the Acting Director-General: Counter Corruption & Security Services. We kindly request the
outcome report of the matter as it has not been provided to date.
5.
Our client has answered to some of the questions you posed to him. To that effect, we
will deal with facts that are both relevant and rational to our client.
6.
It is further our instruction that our client arrived in RSA on 17 February 1996 and
immediately applied for an asylum. Kindly provide us with the Asylum Application that our
client made immediately in 1996 when he arrived. We would like to bring to your attention that
our client did not apply for an asylum on 26 November 1998 as alleged, this seems to us, to
be a re-capture of our client’s details on the system. Further, we would like to know how
authentic is Annexure A.
7.
According to our client, he was issued with a Section 41 permit in terms of Aliens
Control Act No. 96 of 1991, which allowed him to carry out employment in the RSA.
8.
It is further our instruction and understanding that the then Standing Committee which
dealt with refugees, would have reviewed our client’s Asylum Application with regard to
working in embassy (1999), of which it did not.

9.
Kindly furnish us with the decision of the sub-committee of the Standing Committee
with regard to our client working at the DRC embassy.
10.
Further, we would like to refer you to the system records, as our client’s child was
registered on time as per the birth certificate.
11.
We noted that you have inserted the names of Philip Mahlangu’s children on our
client’s file. Kindly explain how Philip Mahlangu’s children are connected to our client.
12.
Accordingly, if our client had committed a criminal act, the Department would have laid
a criminal charge against him however it has failed to do so since 2007.
13.
According to our client, there is no misrepresentation that was committed when he
applied for naturalisation. On that note, we request you to further furnish us with the
Application of naturalisation of our client.
14.
Failure to provide us with all the above requested information within 14 days after
receipt of this letter, legal proceedings will be instituted.
15.
It is further our instruction that the notice of intention to deprive our client of citizenship
comes to light due to a complaint lodged with the Public Service Commission by our client.
We note that our client has never been illegal in the country.
16.
Therefore, we kindly request the Department to desist from victimizing and intimidating
our client. We wonder whether other foreign nationals who are employed in the Department,
are subjected to the same harassment of investigations.
17.
Kindly note that in the event that the Department decide to revoke our client’s
citizenship we will approach the court as we have evidence that you have a witch hunt against
our client and request punitive costs against whoever would have taken such a decision.’

[17] Not satisfied with the appellant’s response, the Minister, on 10 June 2016,
notified the appellant that he was satisfied that the appellant had contravened s 8(1)(a)
and (b) of the Citizenship Act ‘in that [he] acquired South African citizenship through
fraud, false representation and or concealment of a material fact’. In consequence, the
Minister decided to revoke the appellant’s South African citizenship and
simultaneously terminated the appellant’s employment with the Department.

[18] Aggrieved by the Minister’s decisions, the appellant brought an urgent
application in the high court, in which he sought in Part A, an interim relief interdicting
the Minister from revoking his citizenship pending the finalisation of the review.

[19] In Part B of his application, he sought an order that, first, the decision of the
Minister to revoke his citizenship be reviewed and set aside; second, the decision of
the Minister to terminate his employment with the Department be declared unlawful;
and finally, that he be paid compensation.

[20] The review was sought under s 6 of the Promotion of Administrative Justice Act
3 of 2000 (PAJA), alternatively, under the principle of legality. The appellant advanced
various grounds on which he impugned the Minister’s two decisions. As already stated,
the high court reviewed and set aside the decision to deprive the appellant of his
South African citizenship on the basis that it was based on unreliable and insufficient
evidence. But it did not review and set aside the decision to terminate his employment
with the Department, neither did it order the payment of compensation sought by the
appellant.

[21] It reasoned as follows at para 30 of the judgment:
‘It is clear that the Minister based his decision to revoke the Applicant’s citizenship on facts
that [were] never verified. The spousal relationship between the Applicant and Ms Mfuku was
never investigated and the conclusion drawn by the Minister that the marriage was not bona
fide based purely on the relationship the Applicant had with Ms Tsetse is not a rational
conclusion under the circumstances. It was never alleged nor [proved] by DHA that the
Applicant and Ms Mfuku, did not cohabit as required in terms of the Regulations defining a
bona fide spousal relationship. The Minister further relies on the fact that during the duration
of the marriage between the Applicant and Ms Mfuku, both of them had children with persons
outside the marriage, however the Applicant was married to Ms Mfuku for almost 4 years
before his application for naturalisation on grounds of marriage was granted. The Applicant
only met Ms Tsetse in 2005 and the Applicant’s then wife, Ms Mfuku gave birth to another
man’s child only in 2003 more than three years after the Applicant married Ms Mfuku.’

[22] It accordingly concluded at para 33 that:
‘The Minister’s decision and the reasons therefore based on the investigation by DCCS, in my
view is not sufficient to justify a decision to revoke the Applicant’s citizenship. The information
which forms the basis of the Minister’s decision has not been placed before this Court, with
the untenable explanation that the documents are missing and / or destroyed without any
explanation. There is no plausible explanation that I can rely on to justify the revocation of the

Applicant’s citizenship and subsequent termination of employment. The bona fides of the
Respondents in taking this decision is clouded with suspicion and improbable.’

[23] On appeal the full court upheld the Minister’s appeal. The full court rejected the
appellant’s contention that the Minister lacked authority, in the absence of a court order
to revoke the appellant’s citizenship and that the Minister’s decision breached the
appellant’s constitutionally protected right to citizenship. It held that the word ‘order’
appearing in s 8(1) of the Act does not mean a ‘court order,’ which means that the
Minister may make a ministerial determination to deprive an individual of his or her
citizenship. It held further that the Act did not place a time restriction during which the
Minister may invoke his powers under s 8. The Minister, the full court reasoned, has a
discretion to make a decision ‘in the light of the information at his disposal’.
Additionally, the full court held that to the extent that there were serious factual
disputes between the parties, the high court should have, in accordance with the
principles as enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] 2 All SA 366 (A); 1984 (3) SA 623 (A), resolved them in the Minister’s favour,
as the appellant had not sought the disputed issues to be referred for oral evidence.

[24] The full court accepted the Minister’s version that the marriage between the
appellant and Ms Mfuku was a marriage of convenience and that he fraudulently
acquired the South African citizenship.

[25] In his grounds of appeal the appellant advances the following arguments. He
argues, first, that the full court failed to appreciate that the jurisdictional requirements
of s 8(1)(a) and (b) of the Citizenship Act were not established before the Minister
terminated his citizenship. In particular, he contends that the court could not determine
the matter in the absence of the records relating to his asylum file held with the
Department. Secondly, he argues that the Minister was not empowered to terminate
his citizenship ‘on the trite principle of legality when the previous Minister’ had on 1
October 2003, after following due process and the law, granted him citizenship in
terms of the Citizenship Act. The basis for this contention is that s 8(1) of the
Citizenship Act requires the revocation to be authorised by a court and the Minister
did not obtain a court order authorising him to revoke the appellant’s citizenship.
Thirdly, the appellant criticises the full court for having mechanically accepted Mr.

Vorster’s version that his marriage with his estranged wife, Ms Mfuku, was a marriage
of convenience. The fourth ground advanced by the appellant is that the full court
misapplied the Plascon-Evans rule by finding that the Minister had successfully raised
a dispute of fact. Finally, it is argued by the appellant that the full court misdirected
itself by finding that he had failed to respond to the revocation notice, when he, in fact,
had comprehensively responded to the allegations in November 2007, September
2013, 12 May 2016 and 14 June 2016.

[26] During argument before us, counsel for the appellant abandoned the second
ground of appeal that the Minister had no power to revoke the appellant’s citizenship
in the absence of a court order, reviewing and setting aside the previous decision of
3 October 2003 to grant him citizenship. That contention had two legs. The first leg
was that when the Minister granted the appellant citizenship on 3 October 2003, he
became functus officio, and could not subsequently revoke that decision without first
obtaining a court order. The second leg, which was based on the appellant’s
interpretation of the words ‘by order’ appearing in s 8, was that s 8 requires the Minister
to revoke citizenship by court order.

[27] The appellant’s abandonment of the second point was correct. It is apparent
from the reading of s 8 based on its text, factual context and purpose2 that it expressly
confers on the Minister the power under specific circumstances contemplated in that
section to deprive a South African citizen of his or her citizenship. The fact that the
Minister may have previously granted citizenship to the appellant, does not render him
functus officio.3 The Citizenship Act allows him to reverse his own decision without
obtaining a court order. A citizen aggrieved by the Minister’s revocation decision is not
without a remedy. He or she may approach the high court, as the appellant has done
in his case, for an order to review the Minister’s decision. The interpretation of s 8(1)
contended for by the appellant would render s 25 of the Citizenship Act – providing for
the review of the Minister’s decision – nugatory.

2 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA); 2012 (4) SA 593 (SCA) para 18.
3 Thompson, t/a Maharaj and Sons v Chief Constable, Durban [1965] 4 All SA 313 (D); 1965 (4) SA 662
(D).

[28] As regards the first ground of appeal, anchored on s 3(1)(b) of PAJA, it was
submitted by counsel for the appellant that the full court erred in finding that the
Minister had satisfied the requirements for the revocation of the citizenship under
s 8(1) of the Citizenship Act. He argued that the evidence4 relied upon by the Minister
to exercise his powers under s 8(1) was hearsay, suffered from internal contradictions
and was unreliable. It was, accordingly, submitted by the appellant’s counsel that the
full court misapplied the Plascon-Evans rule by finding that the Minister had
successfully raised a dispute of fact.

[29] I reject the appellant’s contention. In the answering affidavit deposed to by the
Director-General on behalf of the Department, he stated that to the extent that he dealt
with matters that did not fall within his personal knowledge, he did so on the strength
of documents and records in the Department’s possession and information that came
about as a result of Mr Vorster’s investigation. In my view, the MCS records in
possession of the Department and to which the Director-General had access; and the
CV, which the appellant submitted to the Department in support of his application for
employment, provided sufficient evidence on which the Minister could make a
determination under s 8(1) of the Citizenship Act. The appellant’s contention that the
evidence of the MCS records is hearsay, should be rejected. It is real evidence and is
admissible in terms of s 15 of the Electronic Communications and Transactions Act
25 of 2002. The MCS document is a computer generated document extracted by the
Director-General from the Department’s computers, to which he had access.

[30] The entries in the MCS document contradict the appellant’s assertion that he
arrived in South Africa on 17 February 1996 through the border of Namibia after having
fled his country of origin, because of fear of persecution by the regime that was in
place at the time and that he came to South Africa as an asylum seeker.

[31] It was not disputed by the appellant that the recordal on the MCS document of
his full names, date of birth and occupation, is correct. What he disputed is that he
arrived in South Africa from the DRC on 5 January 1996, and entered from
Johannesburg International Airport at 18h29, with an official DRC passport, bearing

4 MCS records and Mr Vorster’s affidavit.

passport number 504222, that the purpose of his visit was to work in the media industry
and that he was issued with a temporary resident permit (TRP number HRCGZQH),
which expired on 5 February 1996.

[32] The appellant did not provide a substantive response to the concerns raised by
the Minister about his alleged misrepresentation regarding his asylum seeker status.
In his response in a letter dated 27 September 2013, the appellant stated that the
Department’s immigration and records management systems were unreliable, erratic
and untrustworthy, ‘unstable, error-prone, mixing up users, picking up data not entered
and mixing up several data (data manipulation) causing in the process unreliable data’.

[33] The investigations that were undertaken on behalf of the Minister in 2013 and
2016 revealed certain information about the appellant’s asylum seeker status and
about the process the appellant followed in obtaining his citizenship. The appellant’s
claims that he came to South Africa in order to seek asylum from persecution by his
country of origin, are unfounded. His application for refugee status was merely a
misuse of the refugee/asylum system. The evidence reveals, on the appellant’s
version, that upon his arrival in South Africa, he reported at the Braamfontein Refugee
Reception Office to register as an asylum seeker. He was issued with a temporary
permit, which he had to renew from time to time. This continues to be the case until
10 December 1999, when he withdrew his asylum application following his marriage
with Ms Mfuku on 5 October 1999. During the same period, the appellant says, he
worked for the DRC Embassy in Pretoria. This is inconsistent with his claims that he
fled DRC, because he felt his life was in danger.

[34] The appellant’s response to the concerns raised by the Minister about his status
as an asylum seeker, is unsatisfactory and fails to address the pertinent questions. In
his response dated 27 September 2013, the appellant stated the following in para 48
of the letter:
‘DRC Embassy in Pretoria – which operates in South Africa was neither home (DRC) nor
within the DRC territory (not operating under DRC jurisdiction). The Embassy during 1998-
2000 abided by South African rules. The Embassy is outside the territorial jurisdiction
of DRC. As such, international protection still applied (come into play). Administratively

assisting the Chargé d’ Affaires on private capacity as a consultant during a turbulent
and chaotic period where there was no constitution in DRC, no rule of law and no
governance does not legally or conventionally equate to re-availment. During that
period, the need for protection, the circumstances and conditions in DRC between
June 1998 and August 2000 further made me a refugee “sur place”.’

[35] The analysis of the evidence makes it clear that the appellant’s application for
asylum was not bona fide. The CV claimed employment in an official capacity. That
included assisting in visa applications. It also claimed retrenchment. This is hardly
private employment as a consultant. The appellant’s explanation deals with none of
this in detail but airily dismisses the legitimate concern expressed in the letter of a
material misrepresentation. The appellant misrepresented his status and that to the
extent that there was a factual dispute regarding this fact, the full court correctly
accepted the Minister’s version applying the Plascon-Evans principle.

[36] Additionally, another piece of evidence that was relied upon by the Minister to
revoke the appellant’s citizenship related to the manner in which the appellant
acquired citizenship by naturalisation. On 1 July 2003 the appellant, on the basis of
his marriage to Ms Mfuku, applied for permanent residence. This application was
supported by Ms Mfuku. But at that stage Ms Mfuku was already in a relationship with
another man, known as Orji and two children were born from this relationship, the first
of whom was born on 15 October 2003. The second one was born on
12 November 2005.

[37] The appellant does not dispute that, during the subsistence of the marriage,
Ms Mfuku had a relationship with Orji and that the two children were born from this
relationship. The appellant in fact admits that their ‘relationship had soured during or
around 2003 and [they] had then decided to stay apart of each other’. He says he met
his current partner, Ms Tsotetsi in July 2005. Having regard to these facts, the full
court’s acceptance of the Minister’s version that the appellant’s marriage to Ms Mfuku
was a marriage of convenience, cannot be faulted. The conclusion is ineluctable that
when the appellant applied for naturalisation in July 2003, there was no longer a good
faith marriage between him and Ms Mfuku. The permanent residence permit that was

issued to the appellant, was thus issued through misrepresentation that they were still
staying together when in fact, they were separated. There is no evidence from
Ms Mfuku to corroborate the appellant’s version that a good faith marriage existed
when he applied for a permanent residence permit. In fact, it is the Minister’s version
that during the investigation Ms Mfuku was approached for a statement. She declined
to co-operate, stating that she had been approached and warned by the appellant
against co-operating with the officials of the Department.

[38] In the application form for permanent residence permit, the appellant stated that
he had left his immediate family members in DRC, including his parents, siblings and
his daughter. The extract from the Department’s Traveller’s Record System, on which
the Minister also relied, revealed that the appellant travelled by air from Johannesburg
to DRC on 13 June 2012 and returned on 22 June 2012. Although the appellant denies
this fact in his replying affidavit, he, however, confirms it in para 49 of his letter
addressed to Mr Malatsi on 27 September 2013. The denial that he visited DRC in
June 2012, is therefore untruthful. It is apparent from this disclosure that there was no
basis for the appellant to have had a well-founded fear of persecution by the DRC
government and that his claim that he had come to South Africa as a refugee, is
unfounded.

[39] The appellant’s contention that, in the absence of the records relating to his
application for a temporary permit, which had gone missing, the full court could not
establish whether the requirements in s 8(1) had been met, is rejected. It is correct
that it was held in Democratic Alliance v Acting National Director Public Prosecutions5
that the production of the administrative record is inherently necessary for a court to
undertake the task of determining the regularity of the proceedings sought to be
impugned and that without the record, a court could not perform its constitutionally
entrenched review function.

[40] However, in the present case the absence of the appellant’s asylum file is not
fatal to the Minister’s case. The Minister did not have to rely solely on the asylum file

5 Democratic Alliance v Acting National Director Public Prosecutions [2012] ZASCA 15; [2012] 2 All SA
345 (SCA); 2012 (6) BCLR 613 (SCA); 2012 (3) SA 486 (SCA) para 33.

to establish a case based on the provisions of s 8(1) of the Citizenship Act. Apart from
the asylum file other reliable evidence in the form of MCS documents was available.
The evidence on which the Minister relied, was not woefully inadequate to arrive at the
decision.6 The material at the disposal of the Minister was sufficient to enable him to
reach a conclusion that the appellant had obtained the certificate of naturalisation by
means of false representation or the concealment of a material fact and in conflict with
the Citizenship Act. The Minister’s decision to deprive the appellant of his
South African citizenship is therefore, not unreasonable or irrational. There is a rational
objective basis justifying the connection made by the Minister between the evidence
before him and the decision he made.7

[41] The appeal is dismissed with costs including those of two counsel.

__________________
D H ZONDI
JUDGE OF APPEAL

6 Owners of MV Banglar Mook v Transnet [2012] ZASCA 57; [2012] 3 All SA 632; 2012 (4) SA 300
(SCA) para 61.
7 Trinity Broadcasting, Ciskei v Independent Communications Authority of South Africa [2003] 4 All SA
589 (SCA) para 21.

APPEARANCES

For the appellant:
L M G Mfazi (with T Tshabalala and S
Msimanga)
Instructed by:

Z & Z Ngogodo Inc, Waterfall Park, Midrand

N.W. Phalatsi & Partners, Bloemfontein

For the first and second respondents:
N A Cassim SC (with E D Richards)
Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

17 December 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Mahinga v Minister of Home Affairs and Another (Case no 1027/2020) [2021] ZASCA 179 (17 December 2021)
Today the Supreme Court of Appeal (SCA) dismissed the appellant’s appeal with costs including those of two
counsel.
This was an appeal against the judgment and order of the full court of the Gauteng Division of the High Court,
Pretoria in terms of which it upheld the appeal by the respondents, the Minister of Home Affairs (the Minister)
and the Director-General Home Affairs (the Director-General) against the judgment of the high court. In that
judgment the high court reviewed and set aside the Minister’s decision to revoke the appellant’s citizenship in
terms of s 8 of the South African Citizenship Act 88 of 1995 (the Citizenship Act) which allows the Minister to
deprive any South African citizen by naturalisation of his or her South African citizenship in certain
circumstances. The appeal was with the special leave of this Court.
On appeal, the full court upheld the Minister’s appeal. The full court rejected the appellant’s contention that the
Minister lacked authority, in the absence of a court order to revoke the appellant’s citizenship and that the
Minister’s decision breached the appellant’s constitutionally protected right to citizenship. It held that the word
‘order’ appearing in s 8(1) of the Act did not mean a ‘court order,’ which meant that the Minister could make a
ministerial determination to deprive an individual of his or her citizenship.
In this Court, counsel for the appellant submitted that the full court erred in finding that the Minister had satisfied
the requirements for the revocation of the citizenship under s 8(1) of the Citizenship Act. The SCA rejected the
appellant’s contention and held that the appellant’s response to the concerns raised by the Minister about his status
as an asylum seeker, were unsatisfactory and failed to address pertinent questions.
The SCA held that the Minister’s decision to deprive the appellant of his South African citizenship was not
unreasonable or irrational. There was a rational objective basis justifying the connection made by the Minister
between the evidence before him and the decision he made.
In the result, the appeal was dismissed with costs including those of two counsel.

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