Automated Summary
Key Facts
The applicant, Eyob Belay Asemie, was issued a Lesotho passport (NO. RA 929199) on 21 July 2010, which expired on 20 June 2020. On 19 October 2012, the Minister of Home Affairs ordered the passport's surrender via letter RK 5. The applicant traveled to South Africa on 21 October 2012 and attempted re-entry into Lesotho on 2 November 2012 but was denied at two ports of entry after the passport was declared null and void by the 1st respondent via memo NV 2. The Court of Appeal had previously set aside a naturalization order, concluding the applicant is not a Mosotho citizen. The core dispute involves whether the passport's revocation under section 7(1) of the Passports and Travel Documents Act was lawful, and whether the applicant, as a refugee, was entitled to re-entry rights under the Refugees Act.
Issues
- The court considered the lawfulness of refusing the applicant re-entry under the Refugees Act. The applicant contended that as a recognized refugee, he retained the right to remain in Lesotho until legal admission into another country, while the respondents argued his refugee status was fraudulently obtained. The judge applied section 9 and 12 of the Refugees Act to resolve this issue.
- The court examined whether the Minister's decision to declare the applicant's Lesotho passport null and void was legally justified. The applicant argued the Minister misapplied section 7 of the Passports Act, while the respondents contended the passport was issued unlawfully to a non-citizen. The court analyzed statutory interpretation and the principle of audi alteram partem.
- The court addressed the procedural fairness of the Minister's decision. The applicant claimed a right to be heard, citing the principle of audi alteram partem, while the respondents argued this right does not apply as the passport was never lawfully issued. The judge referenced cases like Babeile Andrew v Attorney-General to determine the applicability of procedural fairness in this context.
Holdings
- The court concluded that the Minister's use of section 7(1) instead of section 14 for revocation was a technical error but justified by the statute's implied prohibition on non-citizens holding passports. The applicant's refugee status was recognized, and the court ordered that his re-entry cannot be denied without following the Refugees Act's expulsion procedures. Costs were awarded to both parties.
- The court determined that the Minister's decision to declare the applicant's passport null and void was lawful by implication, as the passport was illegally issued to a non-citizen under section 7(1) of the Passports and Travel Documents Act. The court rejected the applicant's claim for a hearing, finding he had no legitimate right to the passport due to its unlawful issuance. However, the court ruled that respondents cannot deny the applicant re-entry into Lesotho as a refugee until proper expulsion procedures are followed under the Refugees Act.
- The court dismissed the applicant's request to set aside the passport revocation, affirming that the Minister's authority under section 7(1) implicitly prohibits non-citizens from holding regular passports. The court also found no violation of procedural fairness (audi alteram partem) because the applicant lacked a legitimate right to the passport. However, it interdicted respondents from blocking the applicant's re-entry, citing refugee protection provisions requiring due process for expulsion.
Remedies
- The court orders that the applicant and respondents each bear their own costs of the proceedings.
- Prayer 1(a) is partially successful, restraining respondents from denying the applicant re-entry into Lesotho as a refugee and requiring them to address expulsion in accordance with the law.
- Prayer 1(b) is hereby dismissed; the applicant's request to review and set aside the declaration of the passport as null and void is denied.
Legal Principles
- The court applied the purposive interpretation of the Passports and Travel Documents Act to determine the intent behind the statute, finding the Minister's action justified despite the lack of a direct prohibition.
- The applicant's claim of legitimate expectation to retain the passport was rejected, as his initial acquisition was unlawful and based on misrepresentation.
- The court held the respondents could not rely on res judicata from the Court of Appeal's judgment, as it did not address the legality of the passport's issuance.
- The court ruled the applicant had no right to audi alteram partem (natural justice) as he was not a Lesotho citizen and thus never held a legitimate right to the passport.
- The Minister's decision to nullify the passport was deemed ultra vires because she relied on section 7 of the Act (issuance) instead of section 14 (revocation), which governs passport recall.
Precedent Name
- Babeile Andrew v Attorney-General (CALB-012-09) (2009) BWCA 88
- Masetlha v the President of the Republic of South Africa and Another (2008 (1) BCLR (CC) p 26
- Administrator Transvaal & Others v Traub & Others 1989 (4) SA 731 at 748
- Suresh v Canada (2003) 4 CHRLD 138 at 140
- Minister of Local Government and Another v Mamuelle Moshoeshoe C of A (CIV) NO. 15/09
Cited Statute
- The Passports and Travel Documents Act
- The Refugees Act
Judge Name
Hon. Majara J
Passage Text
- In my view, the fact that as has been revealed in the papers, the applicant is not a citizen of Lesotho and is as such not covered by this section, it is indeed correct that a regular passport ought not to have been issued to him in the first place.
- "...what is done contrary to the prohibition of the law is not only of no effect, but must be regarded as never having been done..."
- Where the application against an expulsion order is rejected the refugee shall, unless national security or public order otherwise require and having due regard to all the circumstances of the case, be permitted to remain in Lesotho until such time as his application for legal admission into a country other than Lesotho is successful.