The court determined that issuing a passport to the applicant, who was not and still is not a citizen of Lesotho, was illegal. Even if the Minister's reliance on a wrong provision was considered, the court could not allow this illegality to persist. The court also analyzed the lawfulness of the respondents' denial of re-entry, recognizing the applicant's right to stay in Lesotho until legally admitted elsewhere. The respondents' claim of fraudulent refugee status was considered irrelevant, as expulsion is prohibited until legal admission into another country occurs.
Passport, asylum seeker, refugee, entry, naturalisation, Msotho, audi alteram partem (let the other side be heard as well)
This was an application to interdict the respondent from denying the applicant the use of a regular passport and to review and set aside the declaration of the passport as void to be irregular, unconstitutional and unlawful.
The applicant possessed a Lesotho passport issued on 21 July 2010, valid until 20 June 2020. Following a Court of Appeal judgment, the Minister instructed the applicant to surrender the passport. On 21 October 2012, the applicant travelled to South Africa with a visa until 13 November 2012. On 26 October 2012, the 1st respondent declared the passport null and void through a memo. The applicant's attempt to re-enter Lesotho on 2 November 2012, was rejected, citing a memo. In response, the applicant rerouted to Maseru Port, where entry was again denied.
According to the 1st respondent's affidavit, the applicant initially declared himself an asylum seeker upon entering Lesotho, later obtaining refugee status. The respondents contended that the applicant, not entitled to Mosotho status, misrepresented facts to acquire the passport. The applicant disputes these claims, citing a letter to the Director of Immigration.
The court dismissed the application seeking to invalidate the decision that nullified the applicant's passport. The application succeeded in parts to the extent that the respondents were stopped from denying the applicant re-entry into Lesotho as a refugee and to deal with his expulsion according to the law. Each party was ordered to bear their own costs.
The court relied on the decision in Administrator Transvaal & Others v Traub & Others together with other decisions which held that the issuance of the passport to the applicant who at that time was not and is to date not a citizen of Lesotho was not sanctioned by the law and was illegal.
The respondents' assertion of fraudulent refugee status was deemed irrelevant, as expulsion is barred until the applicant received legal admission into another country.