Rose-Mary Haufiku
High Court Judge, Thomas Masuku, on Monday dismissed an urgent application by same-sex couple, Philip Lühl, and Guillermo Delgado, to have their recently born twin daughters, currently in South Africa, granted emergency travel documents.
In their application, Lühl, Namibian, and Delgado, Mexican, were seeking an order compelling Minister of Home Affairs, Frans Kapofi, to grant the children travel documents to travel to Namibia. The Judge argued that the court would be overreaching if it were to grant the order.
In the ruling, the High Court held that 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 to him to consider the application on an expedited basis if necessary.
Judge Masuku maintained that while the court is 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.
Uno Katjipuka, representing the same-sex couple, said, “we will study Judge Thomas Masuku’s reasoning before deciding on the way forward, which she said could lead to an appeal to the Supreme Court.
“The circumstances honestly make no sense whatsoever. It is unfortunate and it’s basically a copout out of the court because the courts are our last line of defence, and if the executive violates your right, it is the court that you run to for relief, and it is the court that is empowered to uphold your right, so you can’t have the court and these circumstances of this particular case to tell you I can’t step on the executive’s chore because it would amount to you as overreached,” Katjipuka told Windhoek Observer.
“The High Court is the upper guardian of the minor children. So he needs to come and explain how he thinks the present situation is in the best interest of the children,” Katjipuka said. “We will certainly take steps to make sure that the children return,” she added.
According to Katjipuka, “the Government said they should have applied for emergency travel documents, waited for Home Affairs to refuse the application and then go to court to review the decision while seek urgent interim relief. And that’s the only thing that Government put up by way of argument.”
“The Minister made it clear that he was not going issue travel documents. You want me to submit a formal application? I mean this needlessly being formalistic. And for the court after he understood that, the primary consideration are the best interests of the children. Whatever formalist or technical argument that the Government makes pales in comparisons when you weigh them against the interests of the children and I thought he had understood that argument.”
Namibian authorities have requested that Lühl provides genetic proof he is the father of their two-year-old son, who is also still to get citizenship and their one-month-old twin daughters before providing them with travel documents.
While the South African surrogacy process requires a genetic link, Lühl argues that demanding such proof discriminates against the couple because they are both parents. Namibia does not recognise same-sex marriages.
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