Africa - Chairperson of the Immigration

F, the first respondent, was a German citizen and the long term lesbian partner of the second respondent, a Namibian citizen. F alleged that the appellant's failure to provide reasons for refusing to grant her permanent residence under s 26 of the Immigration Control Act, Act No 7 of 1993 ('the Act'), contravened Art 18 of the Constitution, which compels administrative bodies to act fairly. She also claimed the decision by failing to accord her relationship equal status and privilege with heterosexual couples violated her right to equality and freedom from discrimination as guaranteed by Article 10, right to privacy guaranteed by Article 13(1) and protection of the family as guaranteed by Article 14. In particular she expressed concern that following adverse statements by the President and other members of the Government her lesbian relationship may have been the reason for the refusal although she did not raise the issue before the Board. Further, in its decision the Board stated that it regarded the relationship as a private matter and a neutral factor. The appellant appealed against the judgment of the High Court to set aside the Board's decision and direction that F should be issued with a permit. He further applied for condonation of submission of the appeal out of time due to the negligence of the appellant's lawyers.

In condoning the late submission, allowing the appeal and referring the issue back to the Board (Strydom CJ dissenting), it was held that :

1. In deciding whether to condone non-compliance with rules of the Court the relevant factors are the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent's interest in the finality of the judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice (Federated Employers Fire and General Insurance Co. Ltd & Anor v McKenzie 1969 (3) SA applied). Further, there is a limit beyond which the litigant can avoid being penalised for the negligence of his lawyer where this is the reason for failure to comply (Saloojee & Anor v Minister of Community Development 1965(2) 135 (AD) applied). However, here the circumstances, in particular the reasonable prospects of success on appeal, dictate that the merits should be heard notwithstanding the gross negligence of the appellant's lawyer.
2. It is implicit in Art 18 that an administrative body should give reasons for its decision. However, this is not absolute and may be abrogated for legitimate reasons such as state security provided these are given prior to or during the judicial review. Here it is clear that under s.26 of the Act the Board does not have an absolute discretion when considering residency permits but must assess each application according to set criteria. Further even where an applicant satisfies these criteria the Board is not obliged to grant a permit.
3. As part of the exercise of its discretion the Board should take into account the interests of those state citizens entering the labour market, both qualified and in the process of qualifying. In this regard it did correctly consider the fact that the first respondent's qualifications, skills and experience are no longer in short supply based on expert statements. Even if these are classified as hearsay the Board, not being a Court, is entitled to take them into account. Accordingly the Court erred when it held that the Board had no facts, information or knowledge which could justify its refusal of the permit.
4. Hitherto the Courts have never recognized lesbian relationships as being favourable factors in residency applications by lesbian aliens. Here the respondents should have raised the issue before the Board rather than for the first time before the Court. Even if they had done so it was within the Board's discretion as to whether it considered it favourably or not. Further, it is difficult to reconcile the concession by the respondent's lawyer at trial that the relationship was irrelevant to the Board's decision with their assertion that it is a "universal partnership." Accordingly the Court misdirected itself by requiring the Board to take the relationship into account when making its decision.
5. However, it is true that the Board failed to apply the principles of administrative justice, in particular the audi alteram partem rule, by omitting to disclose relevant facts, principles and policies to applicants and allowing them an opportunity to respond by letter or personal appearance. It is for this reason that the Court should have set aside the Board's decision.
6. Given that there is no constitutional provision for the recognition of homosexual relationships it cannot be asserted that they are on equal footing with heterosexual marriages when it comes to the protection of the natural family unit. This is further reinforced by the lack of the specific protection for homosexuals in the relevant provisions of the African Charter and International Covenant on Civil and Political Rights (ICCPR), both of which influenced Article 14 of the Constitution. Accordingly homosexual relationships fall outside the protection of Article 14.
7. There is no causal or rational connection between the refusal of an alien's residence permit and the protection of their right to privacy. Accordingly there is no violation of either Article 13(1) or Article 17 of the ICCPR.
8. Given that, unlike s9(3) of the South African Constitution, Article 10 of the Constitution does not expressly prohibit discrimination on the grounds of "sexual orientation" its protection cannot be extended to same-sex relationships to enable them to enjoy the same benefits under the Act as married couples when applying for permanent residency (Muller v President of the Republic of Namibia and Anor 2000(6) BCLR 655 (NmS) applied). Hence the failure to include an undefined, informal and unrecognized lesbian relationship with different obligations from that of marriage in s.26(3)(g) of the Act, may amount to "differentiation", but not "discrimination."
9. The matter is referred back to the Board to reconsider and decide after complying with the audi alterem partem rule.

Observations:

1. If Namibia had the same provision in the Constitution relating to sexual orientation [as in South Africa] and no provisions such as Article 14 relating to the duty to protect the natural and fundamental group unit of society�the result would probably have been the same as in South Africa.
2. Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprives them of the protection of other provisions of the Constitution.