Tears of joy after court rules against Home Affairs

There were tears of joy as the High Court in Cape Town set aside a decision by the Department of Home Affairs to refuse a stateless family's application for citizenship.

The Mulowayi family of Kensington‚ Johannesburg‚ finally found relief on Tuesday after a protracted battle with the department which had refused their application for citizenship on what has now been determined to be wrongful grounds.

The Mulowayi family had been in the country since the early 2000s. Florette Mulowayi has lived and worked in South Africa since 2002‚ when she left her home country as a refugee.

Her husband‚ Nsongoni‚ joined her in 2004.

Since they have been in South Africa‚ the couple – originally from the Democratic Republic of Congo (DRC) - had three children – all born in the country. One of the children subsequently died. The family was left stateless after being denied South African citizenship‚ despite meeting all the requirements.

According to Stefanie de Saude-Darbandi‚ a specialist immigration and citizenship law attorney representing the family‚ the court ruling effectively forces the department to render a decision within two months.

She said the court had declared a regulation requiring them to apply for citizenship only after 10 years of ordinary residence in South Africa was beyond the department’s powers and unlawful.

"The Mulowayi family has been put through a traumatic experience that left their youngest son without any legal status.

“This case is a victory not only for the Mulowayis but for the countless other families who are frustrated by inconsistent and sometimes wrongful interpretation and application of our laws by DHA officials‚" De Saude-Darbandi said.

Florette and Nsongoni were granted permanent resident permits in 2011 and waited five years before applying for citizenship. Even after renouncing their DRC citizenship‚ their applications for naturalisation were denied.

At the heart of the department’s decision to deny their citizenship application were regulations that‚ according to department’s legal counsel‚ stipulated a period of 10 years of being an ordinary resident before a citizenship application could be processed.

"However‚ as we argued in court‚ the Citizenship Act clearly stipulates that citizenship may be awarded if the applicant ‘is ordinarily resident in the Republic ... for a continuous period of not less than five years preceding the date of his or her application’.

“The high court agreed and effectively set aside not only the (department’s) refusal to grant citizenship‚ but also the regulation that led to this wrongful decision‚" De Saude-Darbandi said.

She said the department had two months to decide on the family's application.