CIV/APN/249/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
PASEKA MASOABI Applicant
V
SOLICITOR GENERAL 1st Respondent
COMMISSIONER OF POLICE 2nd Respondent
MINISTER OF INTERIOR 3rd Respondent
DIRECTOR OF IMMIGRATION
AND PASSPORT SERVICES 4th Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice D.S. Levy on the 19th November, 1985.
Applicant seeks a declaration that he is a citizen of Lesotho and for consequential relief in the following circumstances :-
On 24th May 1984 applicant and two others were charged with the offence of fraudulently obtaining a passport from the Lesotho Government on his affidavit that he was born in Lesotho, and the applicant was acquitted of that charge. It is alleged that the applicant is a fugitive from justice in South Africa where he is wanted on various charges including armed robbery. If expelled from Lesotho applicant, it seems certain, will be brought to trial in South Africa on these charges.
On 2nd November 1984 applicant was arrested by certain policemen acting on an expulsion order issued against him under the Aliens Control Act 1966, on the
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grounds that he is an alien in Lesotho.
An interim interdict was issued by this Court as a matter of urgency at the instance of applicant restraining the Minister of the Interior from putting the expulsion order into effect pending an action to be instituted by the applicant for the relief claimed in this application, that is, for a declaration that he is a citizen of Lesotho and for an order setting aside the expulsion order.
It is a matter for regret that applicant was advised to seek relief by way of application well knowing that his allegations concerning his nationality would be disputed by the Minister. However in view of the unusual nature of the application and the sense of urgency which surrounds it. I allowed viva voce Evidence to be led forthwith at the hearing of the application on the disputed issues.
The issues that arose in the application were :
1. Whether the applicant was born in Lesotho.
2. Where the onus of proof lies in regard to the allegation that the applicant is an alien
in Lesotho.
On the issue of applicant's birthplace, he alleged that he was born at Ha Mofoka and that both his mother and father are now dead as also is certain Taole whose evidence, he says, would have supported this allegation.
The applicant stated in oral evidence that he was told by his grandmother that his mother had died at his birth at Ha Mofoka and that at the age of 3 he was taken
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by his grandmother to live with her at Clocolan in the Republic of South Africa. Whilst living at Clocolan his grandmother, who was then ill, asked her sister Ellen Tlale to take care of him and he then went to live with her at Thaba Nchu. He took the name of Johannes Tlale when he went to school since Mrs Tlale regarded him as her child.
An affidavit by a certain Ellen Tlale was filed by Respondents from which it appears that she is the mother of Johannes Tlale and that he was born at Thaba-Nchu during 1949.
However, this same person has since attested to a further affidavit in which she alleges that she is not applicant's mother, that she had not known what the contents were of this first affidavit to which she affixed her mark, but that she was misled as to its contents by the Police officers who had approached her for this affidavit. In her subsequent affidavit attested to in Lesotho and to which she again made her mark, she offers evidence corroborative of applicant.
In view of the fact that this witness –
is illiterate and would not herself know the contents of any document to which she affixes her mark;
did not have translated to her or explained to her the contents of her 2nd affidavit;
was apparently available as a witness but was not called by applicant;
it would seem proper to give no weight to either affidavit.
In particular it must be emphasised that Ellen Tlale who may will be the great aunt of applicant and who
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lives at Thaba Nchu would have been readily available as a witness for applicant but no explanation was offered for not calling her as a witness. Her relationship to applicant and her intimate knowledge of the circumstances of his childhood made her potentially a most supportive witness of applicant. At best for applicant then it must be inferred that his failure to call her as a witness is because she would not advance his case. See Elgin Fireclays Ltd. v Webb 1947(4) S.A. 744(A).
The other evidence that might have been corroborative of the applicant's allegation that he was bom in Lesotho is a document apparently signed by Joel Mofoka who is chief of Ha Mofoka. Joel Mofoka gave oral evidence that the signature to the document is not in his writing but is the writing of the late Taole. He stated nor was it challenged that while Taole who was his clerk was authorised to sign on his behalf in such matters, he had no authority to write this witness's name as though it was his signature.
A further document signed by chief Lehlola Mofoka in which he certifies that applicant is a 1st taxpayer takes the matter no further since this chief had no personal knowledge of the facts but accepted applicant's statement in that regard.
Lastly, the Respondents have produced an identity document issued by the Department of Home Affairs of the Republic of South Africa which admittedly bears the applicant's photograph and his fingerprints.
The applicant admits that the document was issued to him originally at Thaba Nchu and the particulars contained
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in it are, inter alia, that applicant was bom at Thaba Nchu in 1949. The applicant says that his cousin accompanied him to the officials who issued this document to him and that it was his cousin who furnished the required information. Even if that be so, applicant certainly knew that his cousin had stated on his behalf that applicant was born at Thaba Nchu in 1949 and made the assertion his own by failing to correct his cousin's misinformation.
There was a muted suggestion that this information was falsely placed before the official concerned in order to obtain the identity document required by applicant. But that suggestion, showing as it does that wherever it suited his own purposes he was prepared to be a party to a dishonest representation, leaves his credibility in considerable doubt. Applicant, so he says, also obtained a South Africa passport in 1973 which showed his place of birth as either Johannesburg or Thaba Nchu. Here once again the applicant has served his purposes by showing his place of birth to have been in South Africa.
This leaves the applicant's ipse dixit that his birth place was in Lesotho, uncorroborated and unreliable.
It is further questionable whether such evidence as he has tendered himself as to the place of his birth based as it is only upon the information given to him by his grandparents is admissible in proof of his citizenship
A police officer, sergeant Molise, who is a fingerprint expert, has given evidence that a comparison of the applicant's fingerprints in Lesotho Mounted Police records
/(L.M.P. 35)
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(L.M.P. 35) with the fingerprints in the identity book issued by the S.A. authorities show them to be those of one and the same person. The comparison shows that applicant is the person wanted by the Lesotho Police on charges of attempted robbery under the name of Paseka Masoabi Johannes while they are also the fingerprints of Johannes Tlale whose identity number is 4678245 as recorded by the S.A. police and in applicant's identity book.
The undisputed evidence is that applicant was brought up in South Africa where he went to school and lived until a short time ago when, using a South African passport, he entered Lesotho and there obtained a Lesotho passport with the assistance of Taole, who is since deceased and who forged the chief's signature for that purpose.
As to onus, the order of the Minister of the Interior which the applicant seeks to have set aside was for his expulsion from Lesotho as an alien in accordance with the provisions of section 25 of the Aliens Control Act 1966. Section 32 of that Act provides that the onus of proving or disproving any facts the proof or disproof of which is required to establish for any of the purposes of this Act that a person is not an alien shall lie on that person.
Applicant's claim to relief in respect of the expulsion order is based on the allegation that he was bom in Lesotho and, as such, is not an alien to whom the Aliens Control Act is applicable. His claim to citizenship is based on the allegation that he was born in Lesotho and he further contends that as a citizen of
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Lesotho he is not an alien who would be subject to the provisions of the Aliens Control Act.
If he was bom in Lesotho the applicant would have acquired citizenship under section 23 of the Lesotho Independence Order 1966 which provided that every person who was born in Basutoland shall become a citizen of Lesotho on 4th October 1966. He would have retained his citizenship under section 3 of Lesotho Citizenship Order 1971 which provides that every person who immediately before the coming into operation of this Order was a citizen of Lesotho by virtue of the provisions of the Lesotho Independence Order 1966 shall continue to be a citizen of Lesotho unless he ceases to be a citizen in terms of this Order or any other law.
The incidence of onus must clearly fall upon a claimant for citizenship on the grounds of birth in Lesotho, It would not be enough for the purpose of the declaration sought by applicant for him to say that he is a citizen. He must prove that he falls within one or other of the categories of persons entitled to citizenship. In casu, be must prove his birth in Lesotho before he can claim citizenship under the 1971 Order.
The Minister has issued an expulsion order alleging the applicant to be an alien. Applicant denies that he is an alien, that is, he says he is not an alien to quote the words of section 23 of the Aliens Control Act. The applicant bases his denial that he is an alien on the allegation that he was bom in Lesotho. Section 23 casts the onus of proof of that fact on him, which may be discharged by proof on a balance of probabilities of the
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disputed fact. I am satisfied that the applicant has failed to discharge such onus because generally he is an unreliable witness who readily changes the facts to suit his purposes and who has twice previously declared himself to be a citizen of South Africa.
To this may be added as well the fact that by obtaining identity documents in South Africa the applicant acquired citizenship of the Republic of South Africa in consequence of which and in accordance with the provisions of section 8(2) of Lesotho Citizenship Order 1971 as a citizen of Lesotho he ceased to be such.
The application is dismissed with costs.
D.5. LEVY
ACTING JUDGE.
19th November, 1985.
For Applicant : Mr. Khauoe
For Respondents : Mr. Muguluma.