Adetshina's case: proper procedures should be followed
Summary
TLDRAshraf 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
📜 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.
🏛️ 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.
Mindmap
Keywords
💡Immigration
💡Refugee
💡Citizenship
💡Due Process
💡Constitution
💡Administrative Decision
💡Promotion of Administrative Justice Act (PAJA)
💡Prima Facie
💡Legal Representative
💡Review
💡Depriving Citizenship
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
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