Adetshina's case: proper procedures should be followed

Summary

Ashraf ESOP, an immigration and refugee law expert, discusses the correct procedures for the Department of Home Affairs when dealing with identity issues and citizenship deprivation. He emphasizes the importance of due process, procedural fairness, and the rights guaranteed by the Constitution, including the right to a lawful, reasonable, and fair administrative decision. ESOP highlights the need for consultation with affected parties and the opportunity to challenge decisions, as well as the availability of legal recourse through the Promotion of Administrative Justice Act and the power of court review.

Takeaways

• 📜 The Department of Home Affairs has previously blocked 1.8 million identity documents, leading to a court case that emphasized the necessity of due process in such matters.
• 👨‍⚖️ The court in the PPM vs. Minister of Home Affairs case clarified that while the Department has the right to block IDs, it must be done correctly and with due process.
• 📝 Due process involves procedural and substantive fairness, including the right to an administrative decision that is lawful, reasonable, and procedurally fair as per the Constitution.
• 🏢 The Department must invite interested parties to a meeting before making decisions that could deprive individuals of their citizenship, ensuring transparency and opportunity for dialogue.
• 📖 The Citizenship Act specifies that only the Minister has the authority to remove citizenship rights, indicating a system of checks and balances.
• 📚 The Constitution and the Bill of Rights protect certain rights related to citizenship, such as the right to a passport and the right to leave and enter the Republic.
• 📋 The Promotion of Administrative Justice Act (PAJA) requires that any decision affecting rights must be made in writing and with procedural fairness, allowing individuals to challenge decisions.
• 👪 Both the mother and child are considered affected parties in cases of citizenship disputes, as the child's citizenship is often tied to the mother's status.
• 🔍 The Department is expected to notify affected parties of their intent to deprive them of citizenship and provide an opportunity for them to present their case.
• 🤔 There may be cases where individuals with questionable citizenship do not come forward due to fear of legal repercussions, complicating the process of addressing such issues.
• 📉 The current situation is part of a broader issue affecting a significant portion of the South African population, with many facing blocked IDs for various reasons.
• 🛑 The Department is taking a systematic approach, including site visits and legal consultations, to ensure that any actions taken are in line with legal requirements and due process.

Q & A

What is the context of the discussion with Ashraf ESOP, the immigration and refugee law expert?

The discussion is centered around the issue of identity documents being blocked by the Department of Home Affairs and the correct legal procedures to be followed when depriving someone of their citizenship.

What was the outcome of the court case referred to in the script, PPM versus the Minister of Home Affairs?

The court ruled that the Department of Home Affairs can block identity documents but must do so in the correct manner, observing due process and ensuring procedural and substantive fairness.

What does 'due process' refer to in the context of this discussion?

Due process refers to the legal procedures that must be followed to ensure fairness, including both procedural fairness and substantive fairness, as guaranteed by the Constitution.

According to Ashraf ESOP, who has the authority to deprive someone of their citizenship under the Citizenship Act?

Only the Minister of Home Affairs has the authority to deprive someone of their citizenship, as per the Citizenship Act.

What rights are guaranteed by the Constitution in terms of citizenship?

The Constitution guarantees rights such as the right to a passport, the right to leave and enter the Republic, and the right to an administrative decision that is lawful, reasonable, and procedurally fair.

What is the Promotion of Administrative Justice Act (PAJA) and how does it relate to the issue discussed?

PAJA requires that any decision taken by an official that materially and adversely affects an individual's rights must be done in writing and with procedural fairness, allowing the affected party to challenge the decision.

Who are the affected parties in the case of a prima facie case against citizenship?

The affected parties include the applicants, such as the mother whose documents are in question and the child who received citizenship based on the mother's citizenship.

What is the first step the Department of Home Affairs should take when there is a prima facie case against an individual's citizenship?

The Department should notify the affected parties of their intention to deprive them of citizenship and invite them to present their case before making a decision.

What are the potential outcomes for individuals who are illegally in the country or have stolen identities?

Unless they are caught or provide prima facie evidence, these individuals are unlikely to come forward. However, if they are identified, they will be notified and given the opportunity to state their case.

What is the significance of the court's statement about the power of review in the context of citizenship deprivation?

The power of review allows individuals to challenge a decision made by the Minister of Home Affairs in court, based on errors of law, factual mistakes, irrelevant considerations, or unreasonableness.

What is the correct approach according to Ashraf ESOP for the Department of Home Affairs to handle cases of citizenship deprivation?

The correct approach includes conducting site visits, hospital visits, interviewing officials, seeking legal advice, and following the procedures outlined in PAJA to ensure that the decision to deprive someone of citizenship is lawful and fair.

Outlines

00:00

📜 Legal Framework for Identity Document Blockage

Ashraf ESOP, an immigration and refugee law expert, discusses the legal intricacies surrounding the blocking of identity documents by the Department of Home Affairs. He emphasizes the need for due process and adherence to the Constitution, which guarantees procedural and substantive fairness. The court case of PPM versus the Minister of Home Affairs is cited as a precedent, highlighting that while IDs can be blocked, it must be done correctly. ESOP explains that the Department must consult with interested parties and provide written notice before any decision to deprive an individual of citizenship. He also mentions the Promotion of Administrative Justice Act, which requires decisions affecting rights to be made in writing and with procedural fairness, allowing individuals to challenge such decisions. The rights of citizens, including the right to a passport and the freedom to enter and leave the Republic, are underscored as exclusive entitlements that must be protected.

05:00

🏛️ Challenging Citizenship Deprivation: Legal Avenues and Procedures

This paragraph delves into the rights of individuals facing potential deprivation of citizenship and the legal avenues available to them. It is highlighted that even if the Minister of Home Affairs decides to revoke citizenship, there is a provision for an application to the court for review. The court can review decisions based on errors of law, factual mistakes, or unreasonableness. The importance of following the Promotion of Administrative Justice Act is reiterated, ensuring that citizens are aware of their rights and the power of review. The paragraph concludes with a discussion on the correct procedures being followed by the Department of Home Affairs, emphasizing that no deprivation has occurred yet and that the process is unfolding correctly, with site visits, hospital visits, and legal advice being sought. The expert thanks the host for the opportunity to discuss these important legal matters.

Keywords

💡Immigration

Immigration refers to the process of moving to a country with the intention of residing there. In the video's context, it is a central theme as it discusses the legal aspects of immigration and citizenship. The script mentions Ashraf ESOP as an 'immigration and refugee law expert,' indicating the importance of understanding immigration laws in cases of citizenship disputes.

💡Refugee

A refugee is someone who has been forced to flee their country to escape war, persecution, or natural disaster. The term is relevant to the video as it highlights the expertise of the guest, who deals with both immigration and refugee law, suggesting the complexity of legal issues faced by those seeking asylum or refuge.

💡Citizenship

Citizenship denotes the status of a person recognized under the law as being a legal member of a sovereign state. The script discusses the rights and protections of citizenship, emphasizing its importance in the context of identity documents and the legal process of depriving someone of citizenship.

💡Due Process

Due process is a legal principle that requires the government to respect all legal rights that are owed to a person. The video script mentions 'due process' as a critical aspect of the legal proceedings involving citizenship, where the state must follow proper procedures to ensure fairness and justice.

💡Constitution

A Constitution is the fundamental legal document of a country, outlining its system of government and the rights of its citizens. The script refers to the Constitution as a source of protection for individuals within the country's borders, especially in terms of citizenship rights, emphasizing its role in safeguarding procedural fairness.

💡Administrative Decision

An administrative decision is a formal ruling made by an administrative authority. In the script, it is mentioned that such decisions must be lawful, reasonable, and procedurally fair, which is particularly relevant when the decision involves depriving someone of their citizenship.

💡Promotion of Administrative Justice Act (PAJA)

PAJA is a South African act that governs the principles of administrative law and ensures that administrative decisions are just and reasonable. The script cites PAJA to highlight the requirement for written decisions and procedural fairness when officials make decisions that affect individuals' rights.

💡Prima Facie

Prima facie refers to evidence that, on its face, is sufficient to prove a fact or a claim. The script uses 'prima facie' to describe the evidence suggesting wrongdoing, which triggers the legal process for the individuals to present their case and respond to the allegations.

💡Legal Representative

A legal representative is a person authorized to act on behalf of another in a legal matter. The video script mentions the opportunity for individuals to engage with a legal representative to understand their rights and challenge decisions that affect their citizenship.

💡Review

In a legal context, a review is a process where a decision is examined again, often to determine if it was made correctly. The script refers to the power of review, indicating that even if the minister makes a decision regarding citizenship, it can be challenged in court through a review process.

💡Depriving Citizenship

Depriving citizenship is the act of removing someone's legal status as a citizen. The script discusses the legal process and requirements for depriving citizenship, emphasizing that it must be done in accordance with the law and with respect to the individual's rights.

Highlights

The Department of Home Affairs has blocked 1.8 million identity documents, leading to a court case where the court ruled that IDs can be blocked but must follow the correct procedure.

The correct procedure involves inviting interested parties to a meeting with the Department before making a decision to deprive anyone of their citizenship.

Due process must be observed, including both procedural and substantive fairness, which are rights guaranteed in the Constitution.

The minister has the authority to remove citizenship rights under the Citizenship Act, but there are checks and balances in place.

The Constitution protects the rights of citizens, including the right to a passport and the right to leave and enter the Republic.

The Promotion of Administrative Justice Act requires that any decision affecting rights must be done in writing and with procedural fairness.

Interested parties, such as applicants facing a prima facie case, must be notified and given an opportunity to present their side.

Both the mother and child are considered affected parties if the mother's documents are in question and the child's citizenship is based on the mother's citizenship.

There may be many people illegally in the country or using stolen identities, but they are unlikely to come forward unless there is strong prima facie evidence.

The Department of Home Affairs is taking the correct approach by notifying individuals of prima facie evidence and giving them the opportunity to state their case.

The courts have emphasized the importance of following proper procedures when blocking IDs, in line with the Promotion of Administrative Justice Act.

Even if the minister makes a decision to deprive someone of citizenship, there is a right to apply to the court for review of the decision.

The court can review decisions based on errors of law, mistakes of fact, irrelevant considerations, or unreasonableness.

The Constitution is designed to protect citizenship rights and ensure that they cannot be easily removed without following proper procedures.

The Department of Home Affairs is conducting site visits, hospital visits, and seeking legal advice as part of the correct procedure in handling citizenship issues.

No deprivation of citizenship has occurred yet, and the Department is following the correct process as outlined by the court and legal experts.

Transcripts

I'm joined Now by Ashraf ESOP who's

immigration an immigration and Refugee

law expert a very good afternoon to you

Ashraf thanks very much for your time I

don't know what you make um of these

events H good afternoon thanks for the

opportunity look I think we need to

start with the following premise this is

not the first identity problem the

department is facing in fact their own

record as having blocked 1.8 million

identity documents this matter then went

to court and the court said in the

matter of PPM versus the minister of

Home Affairs I get it you need to block

IDs but you need to do it in the correct

manner now what is the correct manner

that one deals with this here you you've

been told as a primak case the correct

manner now would be to invite all the

interested parties to a meeting with the

Department after uh sorry before they

make such a decision and if they inclin

to make a decision to deprive anyone of

their citizenship they have to do so in

writing but they have to observe due

process due process is in respect of

both procedural fairness and substantive

fairness these are rights guaranteed in

the Constitution the right to an

administrative decision that is law ful

reasonable and procedurally fair so in

terms of

lawfulness if you are going to be

deprived of your citizenship well then

only the minister in terms of the

citizenship act has that right and only

the minister May remove that right to

you so you can see there's lots of

checks and balances built into the

various pieces of legislation that

govern this kind of thing primarily I've

identified the Constitution which

protects everyone within its borders and

particularly in terms of the Bill of

Rights there are certain rights to the

to the citizenship that you're entitled

to such as a a passport such as the

right to leave and enter the Republic

these are exclusively reserved rights

for Citizens now we come to the uh

promotion of administrative Justice act

and there that requires that any

decision taken by any official that

materially and adversely affects your

rights must be done in writing and part

three or section three of the same act

says there has to be procedural fairness

which I've already outlined they have to

give you a statement in writing they've

got to tell you entitled to come and

challenge the information you can bring

your own information maybe there were

mistakes made we don't know we don't

know what the applicants have in their

possession that may may swing the matter

back into in their favor there could

have been an ad administrative bungling

yes but but who are these people who

must F must be consulted

first the applicants the the ones that

are now being told that there's a prap

case against you both mother and child

because the child has received its birth

right through the mother and the

mother's documents may be now in in

question and obviously the child

received citizenship based on the

strength of the mother's citizenship so

both are affected parties and that

department is definitely going to affect

or send a notice to both the parties

saying we intend to deprive you can you

come and give us your

side but then I mean there

are from what we often get told scores

of people who are here illegally or who

may have stolen other people's identity

so uh unless and until there's that

Prima here um um evidence or they get

caught um they will never they will

never come come come come forward and my

understanding is that this is the first

of many steps that uh have to be to be

taken that have to be taken right now

they would have been notified uh that

there's a prima here uh there's Prim

evidence suggesting you've done some

wrong uh come and uh State your case

isn't

it yeah that's the correct approach it

doesn't matter how many people are faced

with the same kind of challenge that's

why I said in the opening statement

there's 1.8 million people already which

is like 5% of the South African

population that are already facing

blocked IDs for one or other reason but

the courts are saying we understand that

you can block it that is true but follow

the procedure follow paja give them an

opportunity engage Eng with them let

them come with the legal representative

let them know their rights let them be

aware of the power of review in fact

even if the minister makes such a

decision there's an overriding

application that you can make to court

to review such a decision it could be

based on error of law it could be based

on mistake of fact it could be based on

them taking irrelevant considerations

into account it could be unreasonable

you know there's a whole host of

substantive procedures that one must

observe in terms of the administrative

Justice act it's not like the days of a

party you know a mere flick of a pen

would deprive you of your citizenship

that's why the Constitution is so

particularly empowered to protect

citizenship from what we've seen and

heard so far is there anything to

suggest um that no proper procedures

were were

followed no I think the procedures are

unfolding you've just heard them saying

we've done site visits we've done

hospital visits we've uh we have Prima

evidence we interviewing uh officials

and we seeking legal advice that I

submit is the correct way there is no

deprivation this woman is a citizen as

we speak nobody's removed that yet they

intend to do so and this is the correct

way the home Affairs is going is is uh

dealing with

it asop let me thank you for your time

really appreciate it he's an immigration

and Refugee law expert