Home Affairs an embarrassment to Namibia: Three foreigners win domicile legal battle in High Court

After a lengthy legal battle, two Swakopmund residents who moved to Namibia from Germany close to ten years ago, finally received domicile-status in Namibia. That is thanks to a High Court battle the couple won against the Ministry of Home Affairs over the issue of domicile and the subsequent difficulty to obtain work- or residence permits. A third Namibian, not a resident at the coast, who also dragged the Ministry of Home Affairs to court over the same matter, was also victorious.
Not only did the applicants receive domicile, but the High Court also sharply criticized the Ministry of Home Affairs for the unfair manner in which it carried out its mandate over these applicants.
The judgment, delivered by Judge Shafimana Ueitele at the end of November, now sets a new precedent for non-Namibians who are staying in Namibia for more than two years, who wish to call this country home. This process has in the past been marred with bureaucracy and unfair treatment and hampered the applicants concerned with the process to apply for regular work permits or permanent residence.
The judgment dealt with two cases, both very similar when it comes to moving to Namibia from another country. One part dealt with the hairdresser Coenraad Prollius, a South African resident living in Namibia, while the other part dealt with the Swakopmund residents Ralph and Susanne Holtmann.
After hearing the case of the Holtmanns, Judge Ueitele came to the conclusion: “The manner in which the Holtmanns were treated can just embarrass Namibians and not make us proud (…)
This is irresponsible behaviour that borders on incompetence and lack of accountability”, he said while referencing the relevant ministry.
According to their affidavit, the Holtmanns came to Namibia on holiday in 2006. They found a house in Swakopmund, decided to sell all their assets in Germany and move to Namibia. In January 2007, they moved to Namibia. They applied for work permits, which were issued in the same year and were valid for a period of 12 months.
They applied and received new work permits in the following years, until they applied for permanent residence in 2014 through a visa-agency. The agency was repeatedly told by an officer of the Ministry of Home Affairs that their file got lost and as a result they had to resubmit another application in the same year.
After receiving no answer, the Holtmanns, eit-her on their own or through the agency, kept enquiring from the Ministry of Home affairs as to the status of their application for permanent residence – a total of eight letters were sent. Not a single response was forthcoming from the Ministry of Home Affairs.
In 2016, out of desperation, the Holtmanns re-applied for new work permits. On 2 September 2016 an immigration officer visited them at their home in Swakopmund and enquired about their status and demanded to see their passports.
Even though their applications were still pending, the couple was effectively arrested and detained on that day and charged with contravening the Immigration Control Act. They appeared in the Swakopmund magistrates court where they pleaded guilty – they allege that the plea of guilt was not voluntary but was obtained through improper means.
They were found guilty and each sentenced to a fine of N$2 000 or 12 months imprisonment. They paid the fines. Afterwards, they sought legal advice, looking into acquiring domicile status in Namibia.
In his judgement, Ueitele noted that according to the Immigration Control Act, a person that has been staying in Namibia for more than two years would have domicile in Namibia. Seeing as the Holtmanns had the intention of calling Namibia their home and being present in the country for more than two years, it would make them eligible to acquire domicile status.
Judge Ueitele subsequently ordered the that Holtmanns are domiciled in Namibia. He ordered the respondents in this matter, the Minister of Home Affairs and Immigration, the Chairperson of the Immigration Selection Board, the Immigration Selection Board and the Immigration Tribunal, to pay the costs of suit.
The door is now left open for similar legal action by other people who also applied for domicile and refused by the Ministry on the same in-correct legal grounds.
The Holtmanns were represented by Raymond Heathcote.
Sisa Namandje represented the immigration authorities.
∙ The Holtmanns were not available for comment and it is uncertain whether the Ministry would appeal these matters.