Gigaba and Gupta citizenship: several ethical and legal questions remain unanswered

Finance Minister, Malusi Gigaba’s, confirmation this week that he granted citizenship to members of the controversial Gupta family in 2015, is at best an admission of a calamitous lapse of judgment on his part. While a court will have to decide whether the decision was also unlawful and invalid, such a judicial process might reveal fascinating information about the reasons behind the Minister’s decision to grant the family citizenship despite the fact that they did not meet the legal minimum requirements.

By all accounts the Guptas are not a particularly nice, nor a particularly honest, family. They used their contacts and their proximity to President Jacob Zuma (which they attained, amongst others, by giving Zuma’s son – Duduzane – a job, several cars, and a flat) to land a private plane full of wedding guests at Waterkloof military base in 2013. They are also racists who demanded that they and their guests should only be served by white people. Evidence in the public domain also suggest that, if properly investigated, they may be prosecuted for corruption, money-laundering and racketeering.

These are clearly not the kinds of people who would normally be granted citizenship by the government of a sovereign country, let alone be exempted from the ordinary rules that apply to the granting of citizenship to permanent residents.

Before one asks the legal question – whether the granting of citizenship to the entire Gupta family by Minister Gigaba was unlawful and hence invalid – one should ask the relevant political and/or ethical questions. These political and/or ethical questions would include:

• Was there a conflict of interest when the Minister used his exceptional discretion to grant special favours to close friends of his immediate boss? Put differently, is a reasonable for us to apprehend that the Minister granted the special favour to the Guptas because he knew or believed that this was the decision that the President wished him to make because of the President’s personal friendship and financial entanglement with the Guptas.
• Can the Minister’s judgment be trusted, given that he exercised his special discretion in favour of a group of people who are implicated in breaches of the National Key Points Act (an awful piece of legislation, but nevertheless still in force) and may well have committed various criminal offences? When the Minister decided to do this special favour for the Guptas, they had already abused their connections by landing the wedding plane at Waterkloof airport base, so the Minister must have had some understanding of the character of the people for whom he granted a special exemption from the ordinary rules.
• As South African voters, do we support the Minister’s implicit endorsement of the Guptas racism and if we do not, should we demonstrate our abhorrence of racism by declining to support the Minister’s political party in future elections?

I leave it for readers to decide for themselves how they will answer these political and/or ethical questions. Let us turn to the law.

Section 5(1) of the South African Citizenship Act of 1995 states that the Minister of Home Affairs may grant South African citizenship to any foreigner who satisfies the Minister, amongst other things, that he or she is a permanent resident who has lived in South Africa continuously for at least five years (more about this requirement later); he or she is of good character; and he or she is a citizen of a country that allows dual citizenship and if that is not allowed that he or she has renounced citizenship of their country of origin.

Several questions arise about whether these requirements were met.

First, how on earth did the Guptas manage to convince Minister Gigaba that they are of good character: Racists: Tick. Abusing their power to compromise a National Key Point: Tick. Offered ANC MPs jobs as Ministers: Tick. Here the testimony of Trevor Manuel reminds us that Minister Gigaba must have known about the Gupta influence on affairs of state when he decided in 2015 that the family were of good character. Manuel writes in an open letter to Minister Fikile Mbalula:

That memory goes back to an ANC NEC meeting in August 2011. There, the Fikile Mbalula we once knew wept as he spoke. He explained he’d been called to Saxonwold by the Guptas in May 2009 and was told that he was being promoted from the position of Deputy Minister of Police to Minister of Sport. A few days later the President confirmed this change.

As section 5(7) of the Act permits the Minister to make “such enquiries as the Minister may deem fit” about anyone applying for citizenship, and may “require such person to appear personally before him or her or a person designated by him or her”, the Minister could have asked the Guptas to provide him with an explanation about the reports of their racism; their abuse of power regarding the Waterkloof landing; and their knowledge of cabinet appointments before they were made. This would have allowed him to make an informed decision about whether the Guptas were of good character or not. It is unclear whether the Minister did so.

Second, India is not a country that allows for dual citizenship, which means that the Guptas could only validly become South African citizens if they renounced their Indian citizenship. Did the Guptas provide the Minister with the relevant information to prove that they are renouncing their Indian citizenship? At the time of writing, there is no information in the public domain that would help us answer this question.

Third, section 5(8) of the Act states that if the Minister has refused to grant citizenship, a applicants must wait a year before they can reapply. No provision is made for an appeal of the decision. In this case the application was declined on 22 January 2015, yet the Minister reconsidered the application and granted citizenship to the Guptas on 30 May of the same year. Unless the Minister received new information from the Guptas that could have influenced the original decision to decline the granting of citizenship, the decision of the Minister would therefore be unlawful. No evidence have been provided to clarify this point.

Fourth, and quite bizarrely, section 3(2) of the Regulations promulgated in terms of the Act purports to amend section 5(1)(c) by stating that:

The period of ordinary residence referred to in section 5(1)(c) of the Act is 10 years immediately preceding the date of application for naturalisation.

This is of course a legal nonsense (the validity of the regulation is being challenged in the Western Cape High Court), because regulations promulgated by the Minister cannot amend legislation passed by Parliament. This would be a flagrant breach of the separation of powers doctrine. The Minister cannot amend laws. Only Parliament can. But judging from the Department of Home Affairs website, the Department is rather strict about this sort of thing and never makes any exceptions to the ten year rule. The website states:

Applications for naturalisation may only be received by the office if the applicant has been on a Permanent Residence Permit for a period of ten (10) years from the date of obtaining Permanent Residence (PR) in the Republic of South Africa. No application may be received by the office if the applicant has less than the prescribed ten (10) year period.

As we now know from the Gupta saga, this statement is false. The rule as emphatically announced on the Department’s website only applies to ordinary individuals, not to individuals who are rich and/or politically connected and/or friends with President Jacob Zuma. Nevertheless, whether the section 5(1)(c) period of five years or the regulation 3(2) period of ten years residency requirement applies, the Guptas did not meet this requirement.

The Minister did not have the legal power to grant citizenship to the Guptas despite the fact that they might have failed to comply with the requirements of being of good character and of having renounced their Indian citizenship. He was legally bound by these requirements and needed – on reasonable grounds – to have been satisfied that these requirements were met. If they were not met, the granting of citizenship would be unlawful and invalid. He had no discretion to waive these requirements.

But section 9 of the Act does provide the Minister with a discretion to waive the ten year (or maybe five year) residency requirement. Section 9(1) states that:

Notwithstanding anything to the contrary contained in subsection (1)(c), the Minister may under exceptional circumstances grant a certificate of naturalisation as a South African citizen to an applicant who does not comply with the requirements of subsection (1)(c) relating to residence or ordinary residence in the Republic.

If the other (binding) requirements for citizenship were met by the Guptas (difficult as that may seem given the well-known character flaws of members of the Gupta family), the legal question that will arise is whether such “exceptional circumstances” existed that would have legally justified the granting of a special favour to the Gupta family.

The Act is silent on what exceptional circumstances might entail. This leaves the Minister with a wide, but not untrammelled, discretion to wave the five or ten year residency requirement. The decision by the Minister to do a special favour for the Gupta family, apparently by exercising his discretion in terms of section 9(1) of the Act, is administrative action and thus subject to review in terms of the Promotion of Administrative Justice Act (PAJA).

The decision could thus be reviewed on grounds that it was not lawfully taken. If the decision was taken with an ulterior purpose or in bad faith or if the Minister had taken into account irrelevant factors or had failed to take into account relevant factors in making the decision, a court could set it aside.

Furthermore, PAJA allows administrative decisions to be reviewed on grounds of reasonableness. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs the Constitutional Court held that what would be reasonable in a particular case depends on the circumstances and went on to list the factors relevant to deciding whether a decision was reasonable, namely:

the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected… [The court’s] task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution.

Given what was known about the Guptas at the time when the decision was made, was it reasonable for the Minister to find that exceptional circumstances existed that warranted special treatment for the Guptas?

Another question is whether the Minister complied with section 5(9)(b) of the Act which requires the Minister “within 14 days after the commencement of the sittings of Parliament in each year” to table in Parliament the names of persons granted citizenship because of “exceptional circumstances” and must include the reasons for the early granting of citizenship. If he did not comply with these legal requirements the decision would also be invalid.

From the above it must be clear that many political and ethical questions as well as legal questions about the granting of citizenship to the Gupta family remain unanswered. While some of these questions will; be answered if the decision is challenged in court, others will be answered by citizens themselves, regardless of whether the Minister accuses said citizens of being cowards for daring to criticize the government.

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