De Wilde v Minister of Home Affairs
On appeal, the Supreme Court overturned the High Court’s ruling. The Supreme Court found that article 4(1)(d) must be given a generous and purposive interpretation that advances the interests of a child born in Namibia rather than an interpretation that limits such interests. It was held that the immigration status of somebody may throw light on the question of whether he or she is “ordinarily resident”, but it is not a decisive factor. A person may indeed reside on an employment permit in Namibia for a significant periods of time, case in point being that the de Wildes resided in Namibia on the basis of work permits for almost a decade at the time that the matter was argued in the Supreme Court.
The Supreme Court continued to interpret the meaning of “ordinarily resident” and found that, in determining whether somebody is ordinarily resident, each case must be considered on its own facts. It is not a technical expression and would include factors such as whether the person concerned normally lives in Namibia (ie not merely visiting Namibia) and whether the person has no immediate intention of permanent departure. Whether someone is ordinarily resident requires more than the person’s mere say-so and must be established by facts which are capable of objective proof. It was found that the Ministry of Home Affairs must apply their minds to the facts of each case to determine if the claim of ordinary residence has been established. The Ministry of Home Affairs would be within their right to ask a person seeking to invoke article 4(1)(d) to justify his or her claim and to provide the facts upon which he or she relies for the claim of his or her ordinary residence under the article.
Applying the facts put before it, as presented by the de Wildes, the Supreme Court had no hesitation in finding that the de Wildes were ordinarily resident in Namibia at the time of the child’s birth. The order made by the Supreme Court overturned the High Court’s ruling. In its place, the Supreme Court declared that the minor child is a Namibia citizen by birth as envisaged in article 4(1)(d). The Supreme Court further ordered the Ministry of Home Affairs to issue the minor child with a full Namibian birth certificate.
This landmark judgment will undoubtedly have far-reaching consequences for the Namibian society. It opens up the door for parents who are not permanent residents of Namibia and who do not otherwise fall under any of the other categories under article 4 of the Constitution to apply for a certificate of Namibian citizenship by birth for their child, if that child was born in Namibia and one of the parents was ordinarily resident in Namibia at the time of the birth. It will undoubtedly leave Home Affairs with more work as every case must be decided on a factual basis with regard to the particular circumstances of one or both of the parents of the child.
The term “ordinarily resident” is repeated in other sub-articles under article 4 and the decision by the Supreme Court will most likely find application in the sub-articles which deal with citizenship by marriage (See article 4(3)(a)(bb)), citizenship by registration (See article 4(4)) and citizenship by naturalisation (See Article 4(5)).
We are proud to confirm that our firm represented Mr. de Wilde in the High Court and in the Supreme Court proceedings. Mr. Stephen Vlieghe from our litigation department, assisted with research by Dr. Meyer van den Berg from our commercial department, led the proceedings in both the High and the Supreme Courts.
This article was compiled by Stephen Vlieghe, Partner at Koep & Partners – LEX Africa Namibian Member.