Mda wins citizenship battle

Tefo Tefo

THE Constitutional Court yesterday directed the Minister of Home Affairs, Joang Molapo, and his officers to process Advocate Zwelakhe Mda’s application for a replacement passport after the court confirmed his Lesotho’s citizenship.

The court made the decision after considering Advocate Mda’s birth certificate as sufficient proof of his place and date of birth, which the ministry had questioned when denying the lawyer a new passport in March this year.

According to the birth certificate, which was issued on 27 April 1995, Advocate Mda was born on 22 September 1956 in Lifateng, Mohale’s Hoek, and not the Eastern Cape, South Africa, as alleged by the state.

Ruling in Mda’s favour yesterday, the court dismissed Chief Molapo’s argument that Advocate Mda was not a Mosotho, and should therefore, not be given a new Lesotho birth certificate, national Identity Document (ID) and replacement passport.

The minister was relying on an application presented by Advocate Mda’s father to the Ministry of Home Affairs when applying for naturalisation in 1985. In the application, Mr Mda had stated that among his children was Advocate Mda who was born in South Africa.

But the Constitutional Court yesterday ruled that application could not be considered a public document to rely on for purposes of determining Mda’s citizenship.

Justice Keketso Moahloli said the ministry was trying to unfairly deny Advocate Mda the documentation he was seeking.

“I am of the view that the respondents tried to cancel the birth certificate of the applicant without following the law, therefore their actions were unlawful.

As such, the order of the court is as follows:

1. The decision of the 4^th respondent (Mafeteng District Manager of the National Identity and Civil Registry, Keketsi Litšoane) communicated to the applicant is declared null and void.
2. The refusal of a replacement passport to the applicant is declared unlawful,” Justice Moahloli said.

In his lengthy affidavit, Advocate Mda had argued he was being denied Lesotho identification although  “I am a Mosotho male adult of Wepener Road in the Mafeteng urban area, in the district of Mafeteng.”

He continued: “I am an advocate of the High Court of Lesotho and High Court of the Republic of South Africa duly enrolled and admitted to practice as such.

“I am a citizen of Lesotho by birth. I was born on 22September 1956 in Lifateng in the district of Mohale’s Hoek.

“I refer this Honourable Court to my birth certificate issued by the government of Lesotho on 27 April 1995. I confirm that the information appearing on the said document was given to the authorities by my late mother, Nompumelelo Rose Mda.”

The former Lesotho Law Society president also gave a brief background of how the confusion regarding the issuance of replacement passport and acquisition of the ID started.

“I learnt that the 1^st respondent (Molapo) had made statements in the print media and on radio that no replacement passports would be issued to persons who were not in possession of identity cards.

“Being aware that my passport would expire on 30 May 2014, on the 21^st March 2014, I went to the Mafeteng Passport Office where I showed my birth certificate to the attending officer and inquired whether my replacement passport could be processed.

“She categorically indicated to me that it could only be processed on the basis of  a new birth certificate issued pursuant to the National Identity Cards Act, Number 9 of 2011.”

“On 25 March 2014, I went to the Mafeteng Post Office where applications for identity cards are processed. I went there with the intention to apply for the issuance of a new birth certificate and identity card.

“My application was settled by the attending official to whom I submitted a letter from Chief Majara Seeiso, the local chief of Mafeteng urban area, confirming my citizenship and date of birth.

“The said attending officer filled my application forms relying on the said documents, and he showed me where to subscribe my signature and I duly signed.”

Advocate Mda says things took a new turn a week later when he received a “disappointing letter”.

“On 3 April 2014, I received a letter from the district manager of the National Identity and Civil Registry Office, namely Keketsi Litšoane, inviting me to his office and I attended on the same day.

“Mr Litšoane informed me that my application had not been successful because his investigations had revealed that I was not a citizen of Lesotho; he promised to give me a formal written report of his decision in due course. On 9 April 2014, I received his written decision as promised,” he stated.

Part of the “disappointing letter”, which Advocate Mda submitted before the Constitutional Court, reads: “Kindly note that your birth certificate application has been declined based on the following reasons:

• Investigation conducted by our office revealed that you were not born in Lifateng as alleged in your application, but rather in South Africa. You only came to Lifateng while you were already born.
• Investigations further revealed that your father, Solomzi Mda and your mother Nompumelelo Mda, came to Lesotho from Herschel, South Africa and are not Basotho but South Africans who only came to settle in Lifateng.
• According to the Registration of Births and Deaths Act of 1973, Section 42, you are not eligible to be issued a birth certificate in Lesotho but in South Africa as your country of birth.”

However the court rejected these findings, resulting in Advocate Mda winning his case.

The case was before a panel of three judges namely, Justices ‘Maseshophe Hlajoane, Thamsanqa Nomncongo and Keketso Moahloli.

The respondents in the case, were Chief Molapo, the Director of National Identity Cards, Director of Passport Services, Mafeteng District Manager of National Identity and Civil Registry and Attorney General.