The court held that s 49(1) vested draconian powers in the minister. It was never intended to apply to a citizen of Namibia because it would remove with a stroke of the pen all the rights and freedoms to which any person was entitled in terms of the Namibian Constitution. To remove a citizen in accordance with section 49(1) would also be an absurdity because they would not be entitled to stay in any other country except if he was granted political asylum.
The court held that it was not necessary for the purposes of the appeal to decide whether or not Sikunda Snr. was a citizen of Namibia. When an office bearer wished to exercise a statutory jurisdiction bestowed upon them, the burden of proof would be on such office bearer to prove the jurisdictional fact entitling them to act against a particular person. Such proof needed only be on a balance of probabilities. The respondent in the case tried to prove that Sikunda Snr. was neither citizen nor legally domiciled in Namibia. Respondent succeeded to prove on a balance of probabilities that Sikunda Snr. was not a citizen of Namibia at the relevant time, i.e. when the Minister made his order, but failed to prove that he was not domiciled in Namibia at all relevant times.
The court held that the Commission could not come into existence, unless 6 members were appointed, because in such a case the tribunal lacked the essentials for its coming into existence.
Citizenship; immigration law; domicile; administrative action; fair trial; right to have his cause heard
The applicant, Ngeve Raphael Sikunda, the son of José Domingo Sikunda, brought an urgent application on motion before Manyarara, A.J., on 24 October 2000 for the release of Sikunda Snr., from detention, the setting aside of the Minister’s order for his removal from Namibia and certain ancillary relief.
The Minister’s order for detention and removal from Namibia of Sikunda Snr., was purportedly made in terms of section 49(1) of the Immigration Control Act No. 7 of 1993.
The court held that there was no indication whatsoever that either the Minister or the Security Commission considered whether or not Sikunda Snr. was a citizen of or domiciled in Namibia. The reason for that was possibly that they had not realized that the power under section 49(1) could not be exercised against a person who was either a citizen of or domiciled in Namibia. That would mean that both decisions should also be set aside on the ground that the Minister as well as the Commission had also misconceived its power to act in that regard.
The power under section 49(1) of the Immigration Act could not be exercised against a person who is either a citizen of or domiciled in Namibia.
Article 114(2) was peremptory in so far as it prescribed the composition of the Security Commission, that it would consist of six members as defined, was beyond any doubt.