CHILDREN BORN TO FOREIGN IN PARENTS IN SOUTH AFRICA WINS HARD-FOUGHT BATTLE AGAINST MINISTER OF HOME AFFAIRS

Obtaining citizenship by birthright is recognised by countries such as the United States of America, Canada and our neighboring country, Lesotho, but not in South Africa. There are some further requirements which will be discussed in the article below.

In terms of section 2(1) of South African Citizenship Amendment Act, 17 of 2010 (“the Act”), someone born outside of South Africa shall be a citizen by birth if one or both of their parents are South African citizens at the time of their birth.

In terms of section 2(3) of the Act, someone born in South Africa to parents who have been admitted into the country for permanent residence and who is not a South African citizen, qualifies to be a South African citizen by birth when they reach the age of 18 years old, having lived in the country their whole life and having their birth registered in terms of the Birth and Deaths Registration Act, 51 of 1992.

The Act allows for people to acquire citizenship in South African through naturalisation and descent and was introduced in 2010 with the amendments only coming in to force on 1 January 2013.

The Act seeks to accommodate people born in South Africa to parents who are neither South African citizens nor foreigners admitted for permanent residence. Section 4(3) of the Act provides a pathway for individuals to apply for citizenship.

Children born in South Africa to parents who are not South African citizens or who have not been admitted into the country for permanent residence, qualify to apply for South African citizenship upon becoming a major (after turning 18 years old):

  • If he or she has lived in the country from birth to becoming a major; and
  • His or her birth has been registered in accordance with the provisions of the Birth and Death Registrations Act, 51 of 1992.

 

This has been a major step forward in the application or acquisition of citizenship in South Africa, especially for those people who recognize South Africa as their home even though their parents are not originally from the country.

However, while this provision exists, there is no formal way to apply for citizenship in this regard. This is because the Minister of Home Affairs (“the Minister”) has not drafted the necessary regulations to produce application forms to apply for citizenship in terms of section 4(3).

In 2017, six Applicants, who became five as one decided to withdraw, approached the Western Cape High Court to seek an order to oblige the Minister and the Director-General of Home Affairs (the Respondents in this matter) to grant them citizenship in terms of section 4(3) of the Act. They were eligible and met the requirements of section 4(3) but were not granted citizenship due to the problem identified above.

The Respondents argued that there is no prejudice as the Applicants may apply for “refugee” status or alternatively, permanent residence; that section 4(3) does not apply to persons who were born before 1 January 2013 and that section 4(3) must be read with section 2(2) of the Act in this matter.

The Court held that section 2(2) did not apply in this matter and that the Respondents’ argument to apply for refugee status or permanent residence is prejudicial.

With regard to the argument of retrospectivity, the Court held that it cannot envisage an incorrect application of retrospectivity in these circumstances. The Respondents’ argument, put differently, was that only those individuals born after 1 January 2013 and who became a major thereafter can apply for citizenship, with the effect that section 4(3) will only become operational on 1 January 2031.

The Court held that this interpretation takes no account of the duty to interpret statutes in accordance with the Bill of Rights in the Constitution of the Republic of South Africa, 1996. The court also held that this interpretation may infringe on the Applicants’ right to equality and dignity enshrined in our Constitution.

The Court thus ordered that the Respondents accept applications for citizenship from the Applicants and that section 4(3) shall apply to people born before 1 January 2013 if they meet the requirements of the section.

The Respondents were ordered to enact the necessary forms to allow for applications in terms of section 4(3) and to accept applications on affidavit pending the enactment of the forms.

The Minister appealed the High Court decision in 2018 but the Supreme Court of Appeal (“SCA”) agreed with the High Court regarding the interpretation of section 4(3) of the Act.

The Minister raised a new argument in the SCA stating that the Respondents (the five Applicants from the High Court) should have put the Minister on terms and requested him to deal with the application in terms of section 25 of the Act.

This argument holds no water as the Respondents were never given an opportunity to apply for citizenship and its difficult to see how the Minister could have made any decision without application forms. The Respondents were simply turned away.

The SCA, in conclusion, agreed with the High Court, and ordered the same order as that of the High Court with the amendment that “The Minister shall” enact the necessary forms to allow for applications in terms of section 4(3) and to accept applications on affidavit pending the enactment of the forms.

Last year, the Minister sought to appeal the SCA decision as well, taking the five Respondents to the Constitutional Court. The Constitutional Court refused to entertain the Minister’s appeal as the appeal was well beyond the prescribed period for appealing a judgment and the Minister failed to provide adequate reasons as to why there was a delay in the appeal. This means that the SCA decision stands and that the five young adults’ applications should be processed.

However, the Minister has not given any indication that Regulations in terms of section 4(3) can be expected any time soon. This is unacceptable, as the Minister was ordered by the SCA to produce the Regulations at the end of 2018.

This now leaves the five young adults, and many other persons, waiting in agony as there has been no progress from the Minister regarding the Regulations or accepting applications due to the Minister waiting months to appeal the order granted against him each time, thus delaying processes.

The delays and non-compliance from the Minister pose a threat to the Rule of the Law and the Constitution as well as the values enshrined within it because the Minister is denying individuals a right which they legitimately hold.

Hawk eyes will be laid on the Minister, watching his next move and specifically, as to when he will provide the Regulations in terms of the Act.

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