CITIZENSHIP OF FOREIGN NATIONAL CHILDREN

South Africa’s Supreme Court of Appeal handed down judgment confirming the Western Cape High Court’s position, which provides that children born in South Africa to foreign national parents are entitled to apply for citizenship through the South African Citizenship Act 88 of 1995 (Citizenship Act or the Act) even if they were born before 2013.

The LRC represented five individuals who were born in South African before 2013 when the Citizenship Act was amended. Due to the interpretation adopted by the South African Department of Home Affairs, they were prohibited from applying for citizenship in terms of section 4(3) of the Citizenship Act which provides that:

“A child born in the Republic of South Africa of parents, who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if –

(a) he or she has lived in the Republic from the date of his or her birth to the date of becoming a major;

(b) his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act 51 of 1992).”

The court rejected the position adopted by the Department of Home Affairs which interpreted the amendment of the Citizenship Act to infer that only children born after 2013 were able to apply for citizenship in terms of section 4(3) of the Citizenship Act. The Supreme Court of Appeal affirmed that ”it is not in the interest of justice and neither is it just and equitable to send the respondents from pillar to post simply because the Minister has adopted a supine attitude that the regulations will only be promulgated in due course.”

The matter had been before the Western Cape High Court, which held that the Department of Home Affairs is to enact the necessary form/s to allow for applications in terms of section 4(3) and to accept applications on affidavit pending the enactment of the form/s. The Department of Home Affairs argued that the ruling encroached upon the principles of separation of powers. The Supreme Court of Appeal confirmed that the order of the High Court does not encroach upon the separation of powers.

Accordingly, the Supreme Court of Appeal dismissed the appeal with costs. The Minister of Home Affairs was ordered to make provisions for application for naturalization in terms of section 4(3) of the Act. The Court also ordered the Department of Home Affairs to accept applications for naturalization by the respondents and others similarly placed pending the promulgation of the regulations.

The LRC welcomed the judgment which confirms the rights of its clients to nationality and ensures that they are not to be rendered stateless through restrictive interpretation of nationality laws. The rights to equality and to be treated with dignity apply to all persons regardless of their nationality.

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