Chidimma Adetshina's Deportation Case Resumes in South Africa

[00:00:00]Now we're going to go into our guest conversation. The legal battle over former Miss Universe Nigeria and Miss Universe 2024 first runner-up Zozibini Tunzi's status in South Africa continues to raise important questions about citizenship, immigration law, and due process. To help us unpack the legal issues at the heart of this case and what the court will consider, we're joined by Elton Hart, a legal expert at the Law Clinic, University of Johannesburg. Mr. Elton, welcome to Take 3.

[00:00:33]>> [laughter] >> Good afternoon and afternoon to the viewers in the west of our beautiful continent.

[00:00:38]>> Absolutely. Lovely to have you.

[00:00:40]>> Thank you for being a part of the show.

[00:00:41]We know that you're just coming out of court, but we wanted to catch up. Now, for for viewers just just catching up with this information, what what exactly is before the court and what are the key legal issues that the judge will have to determine?

[00:00:55]>> Obviously, when one looks at it and the issue is surrounding Zozibini specifically, her citizenship, whether she holds South African citizenship, whether she holds Nigerian citizenship, and then the court will eventually look at, okay, if we say that she's Nigerian by birth, does Nigeria then allow for dual citizenship?

[00:01:16]And if Nigeria does allow for dual citizenship, then South African courts can then actually confirm because of her tenure in South Africa, she knows South Africa, she's accustomed to what's happening in South Africa, to then also make an order that she can actually hold dual citizenship under our citizenship laws, that she qualifies based on her circumstances. But it doesn't necessarily mean that that's going to be the case for each and every individual that holds a foreign passport. So if they look at it case by case, but I think Zozibini has a strong case to make out here in court.

[00:01:51]>> Okay, so I know you just said that you think that she has a strong case, right?

[00:01:55]But we saw her go from contestant in a pageant in South Africa to then representing Nigeria in the Miss Universe pageant. Do you think that this will affect her case?

[00:02:07]>> No, I don't think it should affect the case. The The mere fact that she represented Nigeria, as I said earlier, the um South African legislation citizenship allows for dual citizenship if the Nigerian position is also that they would permit her to have dual citizenship, then it shouldn't affect that all cuz if Nigeria allows her to have dual citizenship, then she can apply based on her living in South Africa, being here for years, uh knows the the South African environment, is accustomed to these things, then I don't think they can hold that against her cuz then it will mean that um I don't want to mention this, but then it will mean that France has to send back all our boys.

[00:02:50]>> Mhm.

[00:02:50]>> Mhm.

[00:02:51]>> [laughter] >> Okay, Elton. Uh Home Affairs argue that Chidima is in South Africa without lawful immigration, right? What must the department prove? And what would Chidima's legal team need to establish in her defense?

[00:03:10]>> Now, the the issue that stems from there is was um they said Chidima's mother did not actually have South African citizenship, and based on that cuz remember Chidima being the child of a mother, she then acquires the citizenship of her mother. So, now they were disputing to say that the mother is actually a South African, and hence then it would make Chidima's case then to be not South African. But, I mean, even if that is the case, one can still look at naturalization. And if the Nigerian legislation allows, uh and if we say now Chidima um maybe the citizenship of her father because now she becomes stateless, the citizen of her father attaches to her, still if she's Nigerian citizen, and the Nigerian legislation then allows for dual citizenship. She can then still make that application, but I think Home Affairs is now just sort of have back tracking and actually trying to sort of have covered their tracks where they actually maybe did not do their work properly or they did not consider certain documentation properly.

[00:04:12]So, they would obviously go from the stance not to make a big who are in South Africa to say [clears throat] they're going to oppose it, but if one looks at it nicely, I think the circumstances favors her that the court will rule in her favor.

[00:04:26]>> So, if someone out in if someone possesses a valid Nigerian passport, does that automatically weaken any claim that it may have to South African citizenship or permanent residence?

[00:04:40]>> No, not at all. It's like similar like the the young gentleman that actually just played for us in the Nations Cup, Enyimba FC. Enyimba FC his father is Nigerian and then his mother is South African and he could qualify for for both sides of citizenship and then it comes back again to does Nigeria allow for dual citizenship and if Nigeria allows for that, then he can hold them both. So, that is and that's why I'm saying they look at it case by case and I think Chidinma's case it's it's it's it's it's specific and she has a lot of um factors or circumstances surrounding her case that actually favors her to get this in her favor and I think um her representing Nigeria at the at the pageant was maybe something to say that listen here this is maybe for the media not the media houses the modeling houses just to make a statement, but I think in terms of the law she would be entitled and in a position to actually bring an application of this magnitude and actually be successful successful with it.

[00:05:45]>> Okay, so we've heard people say and I think you also alluded to the fact that home office home affairs I mean may not have followed due process. How can this affect their case?

[00:05:58]>> You see remember now home affairs was like reacting to a situation because there was an uproar from certain sectors within South Africa about Gigaba and the whole scenario surrounding Gigaba and it was not actually clear and home affairs now to actually sort of have appeased the noise makers without looking properly at what is really in front and what is at play.

[00:06:23]They just said okay, we just going to revoke her citizenship status. Yes, they can do that the law allows them to do that but then the law also allows Gigaba to actually take because it's an administrative action that they did to take it on review, take it to court and say but whatever you did was unlawful and I am supposed to be afforded my citizenship and my status being restored.

[00:06:48]>> I want to be honest but this case has sparked wider debates around nationality, migration and identity.

[00:06:56]How do courts ensure that public opinion doesn't influence what should ultimately be a legal determination?

[00:07:04]>> The thing is like judges is supposed to be sort of have objective not moved and swayed. Yes, if there's a public outcry about a certain problem, a judge should not just merely base its decision or decisions based on the sentiment of the public because remember the sentiment of the public is not informed or based on law. It's sometimes based on personal feelings, emotions that you hold pertaining to a certain individual or grouping. So, it should never be that you should apply the law, work within the parameters of of law and eventually um if we claim to be the constitutional state we are, then we need to adhere to the supremacy of the constitution at all times, and it speaks to every person.

[00:07:51]So, we need to treat every person the same as he if he or she would have been a South African, and that is the crux of the matter and how judges should actually adjudicate on these matters, and I would not think for a minute that they should deviate from that. They should actually stick to that.

[00:08:08]>> Mhm. I like that. I like that.

[00:08:10]>> But Alton, if the court rules against Chidima, what legal options would she have? Could she appeal, regularize her immigration status, or maybe face immediate deportation?

[00:08:22]>> No, indeed she can actually appeal if a court uh if the high court takes a decision, she still has the full bench, then she has the Supreme Court of Appeal, and then she eventually has the Constitutional Court to appeal to cuz this is a matter of constitutional nature. Although the high court has jurisdiction over it, but the court that has the final say will then be the court. So, she can go up and to these various courts.

[00:08:45]>> Okay. Um what precedent do you think that this case could set for citizenship and immigration disputes involving alleged irregularities committed by, you know, a parent rather than the individual concerned?

[00:08:59]>> No, it can be a and remember in South Africa, and for me luckily I've been working in the space where we have a lot of kids that is stateless because the mother is from South Africa, the father is from another country, and sometimes then the father for whatever reason the father disappeared. Now, the mother passes on, and this child doesn't have any other relatives or siblings that one then it rendered the child stateless.

[00:09:24]So, we deal a lot with these types of cases, and obviously it could set a good precedent to say yes, maybe we deal with the mother in a different way because she committed maybe a fraudulent act that uh she acquired citizenship, but should the child really be punished for the parents' mistakes? No, we can never do that, and I think that should be the president that he said yet to say yes, the child was here, maybe the child was brought here unknowingly, because if you bring a 4-year-old across the South African border, they don't even know where they're going. They're just going with their parent. And now suddenly the parent for some odd reason did something illegal to actually get documentation to be in the country. Can we really the child for that and deport them to a home that they don't know? Is that they're not going against the UN convention and the charters that we are signatories to?

[00:10:18]>> You know, I'm curious, Elton, because in one of the reports circulating, South Africa as the Minister of Home Affairs says Chidima is a prohibited person.

[00:10:27]What does that term mean legally?

[00:10:31]>> And remember now, you can be a prohibited person for a period of 5 years. After 5 years, they that suspension can be lifted, but you can also approach the courts to say listen here, whatever the decision of Home Affairs was, it should be taken on review because they have not fully considered this. They made a rushed decision because there was public scrutiny on how they actually conducted themselves at the beginning and how they actually handled the whole process in order to do just damage control. They said, "Okay, the easiest way, she's a person that doesn't hold South African status, it's withdrawn, and she's a prohibited person." And that was just most probably to give them sort of the easy way out, and now they want to put the ball in the court of Chidima to say, "If you want citizenship status to be restored, you have to do the hard yards. You have to do the hard work to prove that you are actually a South African or you should be allowed for your status to be restored as it was prior to the uproar that came because you were now one of the hottest contestants in the competition.

[00:11:42]>> You know, I I want to ask. Zodwa is in this situation because of something that her mother allegedly did.

[00:11:48]Would we see the Home Affairs carry out any actions against Zodwa's mother?

[00:11:53]Can we expect that?

[00:11:55]>> Indeed, if you punish Zodwa for something that she didn't do, surely then you should be actually acting against the mother as well. You can't say, "Okay, I'm going to punish the child for something that the mother is like, 'Okay, I'm with my father. My father steals bread there and milk in a shop. Yes, it's to feed me, but I never planned to steal the bread.' Now you're going to just because I ate because I'm a child I was hungry, my parents I must eat, you punish me for theft, but you leave my father untouched." Then that doesn't make sense. So if they say that Zodwa's there's some wrongdoing on Zodwa's side, they first need to look at the source, the origin of the alleged wrongdoing, and deal with that person, and then subsequently come up with maybe legislative changes that will say, "Listen, if circumstances like this happens in future, this is how we're going to deal with it." Cuz they don't have any mechanisms up until the Zodwa thing, and the easiest way was for them to say, "We just revoke her citizenship and let her go to court and fight the battles that she wants it to be restored."

[00:13:00]>> Okay. I like that analogy, by the way.

[00:13:03]>> We're going to keep track of this, and we want to see how it pans out. But of course, thank you for spending time with us and giving us some insights into this situation.

[00:13:10]Thank we appreciate your time on the show.

[00:13:13]>> [music]