Minister of Home Affairs and Immigration v Luhl (SA 96-2021) [2023] NASC (20 March 2023)

When the respondent applied for the registration of the minor child’s citizenship by descent, the Minister of Home Affairs and Immigration required him to submit to a DNA paternity test to prove that it was the respondent and not his Mexican same-sex spouse who contributed the male gamete (reproductive cell). The respondent refused, and approached the High Court for it to declare that the minor child had acquired citizenship by descent by virtue of the respondent being a ‘parent’ of the minor child – and that the birth certificate issued by the South African authorities was sufficient proof of such parentage as contemplated by Article 4(2) of the Namibian Constitution. 

He alleged that the minister’s refusal was actuated by his disapproval of the respondent’s same-sex marriage to a Mexican national, with whom the respondent is recorded as joint (male) parents on the birth certificate issued by the South African authorities in respect of the minor child. 

The alleged discrimination was said to be because the same stance would not have been taken if the respondent was married to a female. In addition, the respondent relied on the surrogacy agreement concluded in South Africa in terms of the laws of that country and sanctioned by the Western Cape High Court, and invoked Articles 8 and 10 of the Constitution, which provides for dignity, equality and freedom from discrimination. 

It was the respondent’s case that the minister’s refusal to grant citizenship by descent to the minor child was unconstitutional as it was in conflict with Article 4(2) of the Constitution. In terms of that provision, a child born outside Namibia to a Namibian father or mother may acquire Namibian citizenship by descent if he or she complies with the requirements and conditions for the registration of such citizenship. According to the respondent, the minor child was born to him (a Namibian citizen) outside Namibia, and therefore qualifies for citizenship by descent. He maintained that there was no dispute regarding the validity of the duly-authenticated birth certificate issued
by the South African authorities in respect of the minor child and recording him to be the parent of the child.

The minister opposed the application, and filed a counter-application seeking an order that the respondent submit to a DNA test. The High Court held that the surrogacy agreement sanctioned by the Western Cape High Court, and the birth certificate issued in South Africa to the minor child, constituted sufficient proof of the respondent’s paternity of the minor child and directed the minister to issue a certificate of citizenship for the minor child. The High Court dismissed the counter-application. Essentially, the High Court found that the minister unlawfully denied the minor child citizenship by decent as contemplated by Article 4(2) of the Constitution, and ordered that:

‘1. The minor child YDL, born on 6 March 2019, is hereby declared to be a Namibian citizen by descent, as envisaged by Article 4(2) (a) of the Constitution of the Republic of Namibia.

2. The Minister of Home Affairs and Immigration is within 30 days of issue of this order, directed to issue the said minor child, YDL, a certificate of Namibian citizenship by descent.

3. The counter-application launched by the Minister of Home Affairs and Immigration to compel the applicant to submit to a DNA test, to prove the paternity of the minor child YDL, is hereby dismissed.

4. The respondent is ordered to pay the costs of the application.’

Aggrieved by the orders, the minister approached the Supreme Court on appeal. The material facts being common cause that, either the respondent or his spouse contributed the male gamete which fertilised the egg of the South African surrogate mother. That arrangement was sanctioned by the Western Cape (WC) High Court under the laws applicable in that country. 

After the minor child was born, the
South African authorities issued a birth certificate in respect of him, where the respondent and his spouse are recorded as the child’s ‘parents’. 

The two spouses thereafter travelled to Namibia with the minor child, and applied to have him registered as a Namibian
citizen by descent on account of the respondent being recorded on his birth certificate as a ‘parent’. 

The minister then required the respondent to submit to the scientific test to prove paternity, which he refused. It is common ground between the respondent and the minister that the actual donor of the male gamete (as between the respondent and his spouse) is a matter peculiarly within the knowledge of the couple, and unknown to the Namibian authorities.

The minister’s case was that it is necessary to establish that the respondent (and not his same sex-spouse) was the male donor of the gamete that fertilised the egg of the surrogate mother. The argument goes that it is in the best interest of the minor child to remove the uncertainty about his
biological paternity. At the core of the minister’s stance was the need to avoid the possibility of granting Namibian citizenship by descent to a non-Namibian.

In his opposition, the minister also contended that the respondent had not complied with section 2(2) of the Citizenship Act, 14 of 1990, which makes it a precondition for the acquisition of citizenship by descent for a child born outside Namibia that its birth be registered at a Namibian diplomatic mission or trade representative in the prescribed manner and in terms of applicable Namibian legislation; alternatively, that upon entry into Namibia of such a child, its birth is registered in Namibia in the prescribed manner within one year after such entry or such longer period as the Minister of Home Affairs may prescribe. The Supreme Court stated that:

‘[17] Since the minister’s allegation of non-compliance with section 2(2) of the Citizenship Act was unanswered, it stood uncontroverted that, as a fact, the minor child’s birth was not registered in terms of the requirements of section 2(2) of the Citizenship Act. The only way the respondent can avoid the consequence of non-registration is if it is held that the section did not apply to the minor child’s situation...’

‘[26] … The court a quo was alive to the minister’s primary reason for insisting on a DNA test – ‘that scientifically, only one male gamete is capable of causing conception, and it is critical in this case to know whose gamete is the one that caused the conception of. . . the minor child’.’

On appeal, counsel for the minister raised a point in limine that the relief granted by the High Court was incompetent without regard being had to the counter-application. The reason for that was that the High Court failed to consider the point raised by the minister in the answering affidavit that in terms of section 2 of the Citizenship Act, the jurisdictional fact for the granting of citizenship by descent under Article 4(2) is registration of the birth of the child in the country of birth at a Namibian diplomatic mission or a trade representative, alternatively in Namibia within a period of one year or a longer period approved by the minister – and in terms of the applicable laws of Namibia. It was common cause that in respect of the minor child, no such registration took place. Thus, the question was whether the respondent was required, as a matter of law, to comply with that provision – and as a precondition for claiming citizenship by descent on behalf of the minor child?

A full bench of the Supreme Court considered the question as follows:

‘[38] Maritz J (in Tlhoro v Minister of Home Affairs 2008 (1) NR 97 (HC); referred to with approval by this court in MW v Minister of Home Affairs 2016 (3) NR 707 (SC) para 29)), was eminently correct in stating that Parliament is authorised by the Constitution to require persons seeking citizenship by descent to register as such. That is what Parliament has done in terms of the Citizenship Act.

Section 2 of the Citizenship Act deconstructed

[39] Section 2 of the Citizenship Act establishes the following jurisdictional
 facts for the acquisition of citizenship by descent:

Sub-section (1) – The child should have been born abroad to a mother or father who is a Namibian citizen. Once that threshold is met, his or her citizenship must be registered in the prescribed manner, whereupon the minister can cause a certificate of registration to be issued. Now, this is subject to sub-section (2). 

Sub-section (2) – This provision deems compliance by the child born outside Namibia to a Namibian citizen, mother or father, with the requirements for registration under Art 4(2)(b) of the Constitution, if the following occurs:

(a) The birth is registered at a Namibian diplomatic mission or a trade representative abroad; or 

(b) The child had entered Namibia, and its birth is registered in Namibia in prescribed form within one year after entry into Namibia, or a longer period as the minister may approve.

[43] Because the provision in sub-section (1) regarding citizenship by descent is subject to that in sub-section (2) setting out the registration requirements, such citizenship is ‘deemed’ upon proof of registration.

[44] The scheme created by Article 4(2) of the Constitution and section 2(2) of the Citizenship Act makes it clear that it is a precondition for registration of citizenship by descent that the birth of a child born to a Namibian citizen outside Namibia must be registered in terms of either section 2(2)(a)(i) or (ii).

[46] Since the birth of the minor child was not registered in in terms of section 2(2)(a)(i) or (ii) of the Citizenship Act, it was not competent for the High court to grant the relief it did to the respondent. The application should have been dismissed on that basis alone, and it was not necessary for the court a quo to deal with the minister’s counter-application.

[47] This case is and was similarly not about adoption, as there is also a specific procedure under our law for dealing with such matters (Child Care and Protection Act 3 of 2015). It was never the respondent’s case that those provisions were complied with, and that citizenship ought to have been granted to YDL on that basis. It is, therefore, unnecessary to deal with the issues raised in argument by the respondent concerning adoption.’

As a result, the Supreme Court held that the point in limine was good, and because there was non-compliance with section 2 of the Citizenship Act, the minister was correct in not granting the minor child citizenship by descent. It was, therefore, not necessary to consider the counter-application. The order of the High Court was accordingly set aside. There was no order as to costs. 

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