CIVIL PRACTICE – APPLICATION FOR EMERGENCY TRAVEL DOCUMENTS  PENDING ADJUDICATION OF APPLICATION FOR CITIZENSHIP – APPLICANT IN SAME-SEX MARRIAGE – JUDICIAL OVEREACH – SEPERATION OF POWERS

CIVIL PRACTICE – APPLICATION FOR EMERGENCY TRAVEL DOCUMENTS  PENDING ADJUDICATION OF APPLICATION FOR CITIZENSHIP – APPLICANT IN SAME-SEX MARRIAGE – JUDICIAL OVEREACH – SEPERATION OF POWERS

The applicant approached the court seeking a mandatory interdict compelling the Minister to issue temporary travel documents to his children who were in South Africa and born to him and his partner through surrogacy.  The applicant wrote a letter to the Minister’s legal practitioners, suggesting that the Minister issues the emergency travel documents, pending a matter between the parties which awaits judgment. The Minister declined the suggestion and proposed that the parties await the judgment. This prompted the applicant to launch an urgent application compelling the Minister to issue the travel documents, in what was a final mandatory interdict.

MASUKU J considered the matter and held that:

1. The applicant ought to have filed an application for the issuance of the travel documents before the Minister in terms of the law and then requested him to consider the application on an expedited basis if necessary.
2. The Minister, in view of the manner the matter developed, did not make a decision on an application for issuance of travel documents that would be the basis of the court reviewing and setting same aside.
3. To give in to the entreaties of the applicant in the present circumstances, would amount to the court impermissibly violating the doctrine of separation of powers and thus arrogating upon itself powers that the law has decreed should rest in the Minister.
4. Although the court appreciates its role as the upper guardian of all minors, it would be precipitous for it and would amount to judicial overreach for it to grant the order prayed for, lying as it does, within the constitutional mandate of the Minister, the court being able to intervene on review.

In the result, the application to compel the Minister of Home Affairs to grant emergency travel certificates to the minor children born on 13 March 2021 was dismissed, and the alternative application directing the Minister of Home Affairs and Immigration to allow the Applicant to enter Namibia with the minor children, in the care and custody of the Applicant was refused.

Lühl v Minister of Home Affairs and Immigration HAHCMD 19 April 2021