Landmark citizenship ruling

A full bench in the Supreme Court has ruled that a child born in Namibia in 2009 of a Dutch couple residing in the country on employment permits has the right to acquire Namibian citizenship.
The matter, brought by Marius Cornelius de Wilde against the home affairs minister, stems from a High Court ruling that denied the child citizenship due to the fact that the parents were not in Namibia on permanent residence permits. Arguments in the High Court centred around the definition and application of the term “ordinarily resident”.
The High Court said the term is something more than “habitual and normally resident” and it was not satisfied that the acquisition of an employment permit, given that it was temporary in nature, met the test of permanence necessary to amount to “ordinarily resident”.
In the High Court’s view, the renewal of an employment permit, such as was relied on by De Wilde, did not detract from the fact that it bestowed only a right to temporarily reside in Namibia.
The De Wilde couple, in their affidavits to the High Court said they have been “ordinarily resident” in Namibia since 2006. In April 2006, they contacted Namibia’s Ministry of Trade to inquire about investing in Namibia and to “ultimately reside here” and received a positive response.
They proceeded to apply for an employment and residence visa for the purpose of conducting market research as a prelude to investing in Namibia and uplifting their roots in the Netherlands.
De Wilde was issued the first employment and residence permit on 28 July 2006.
The permit was periodically renewed without objection until 31 August 2014 – a period of eight years.
Buoyed by the outcome of the market research, De Wilde and Bram’s mother decided to start investing in Namibia with the intention to make Namibia their new home.
They registered two close corporations and sold all their property and assets in the Netherlands in order to make a new life for the family in Namibia.
The couple bought a residential property in Windhoek in November 2008 where they live. Although they were not married when they first came to Namibia, the couple got married in Windhoek on 1 October 2009.
Bram’s birth was registered with the Namibian Ministry of Home Affairs which issued a ‘Non-Namibian Birth Certificate’.
At the time of Bram’s birth and registration, the De Wildes had been resident in Namibia for an uninterrupted period of three years on the basis of employment permits that were repeatedly renewed. However, on 12 April 2012, Louise van den Meij gave birth to the couple’s second son, Levi, in Windhoek.
Levi was issued a full birth certificate (signifying Namibian citizenship by birth) by the Ministry of Home Affairs. De Wilde and Louise were perplexed by this, given that Bram had not been issued a full birth certificate, and their residential status in Namibia had not changed since Bram’s birth.
The couple sought legal advice and were advised that Bram was just as entitled to Namibian citizenship as Levi was. Efforts through their legal practitioners to have the matter resolved bore no fruit, hence the proceedings instituted in the High Court.
Deputy Chief Justice Petrus Damaseb, Acting Judge Dave Smuts and Acting Judge Kate O’Regan concurred in their judgement, saying that: “…the Constitution is the source of all law and must take precedence over other laws which are subordinate to it. Constitutional provisions are not determined by the content of legislation. Therefore, the framers of the Namibian Constitution intended the phrase ‘ordinarily resident’ to have a meaning distinct from permanent residence - contrary to the finding of the court that the two meant the same thing.”
They found the High Court had misdirected itself in holding that permanent residence was a condition precedent to ordinary residence. “The argument that an employment permit is temporary in nature and may not be renewed and thus making the residence in Namibia of the holder precarious is in any event not sound. In the first place, it assumes that the holder of an employment permit is without recourse if it is not renewed.”
The bench continued by saying that the couple had proven their residence in Namibia as a country of choice. The result the High Court should have reached therefore is that Bram had acquired Namibian citizenship by birth on account of his parents being ‘ordinarily resident’ in Namibia on the date of his birth on 27 October 2009, as contemplated by Article 4 of the Namibian Constitution.
An order for costs of one counsel for the application and two for the appeal was granted.

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