Press Release: LRC files opposing papers against the Department of Home Affairs
Published by The Legal Resources Centre 20 September 2019
Minister of Home Affairs v Miriam Ali
For Immediate Release: 20 September 2019
Today, the Legal Resources Centre filed papers in the Constitutional Court opposing the Department of Home Affairs’ (DHA) application for leave to appeal against the judgment handed down by the Supreme Court of Appeal (SCA).
In November 2018, the SCA handed down judgment confirming the Western Cape High Court’s (WCHC) position, which provided 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 represents five (5) persons who were born in South African before 2013 when the Citizenship Act was amended.
This application for leave to appeal arises out of the persistent and unlawful failure or refusal of the Department of Home Affairs to allow our clients the right to apply for citizenship in terms of Section 4(3) of the Act. The result of this unlawful approach is that our clients have been precluded from obtaining citizenship of South Africa, which they are all entitled to as a matter of law.
Section 4(3) deals with the right to obtain citizenship of a child who is born in South Africa, but whose parents are not South African citizens and who have not been admitted into the Republic for permanent residence. It provides that the child can obtain citizenship by naturalization if:
The child has lived in the Republic from the date of his or her birth to the date of becoming a major; and
The child’s birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992.
Section 4(3) came into force as a relatively recent enactment and came into force 1 January 2013. The Department contends that this means that the section has no application at all to a child born before 1 January 2013, even where the child turns 18 after 1 January 2013. In other words, on the Department’s approach the first time that any child will qualify for citizenship under the section is in the year 2031 – when a child born in 2013 turns 18.This approach was rightly rejected by the WCHC and the SCA, which (in the absence of any prescribed form) directed the Department to accept applications on affidavit from our client and to decide them within ten days. The SCA affirmed that
”it is not in the interests 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.”
We will continue to fight for the rights of our clients to nationality and ensure that they are not to be rendered stateless through restrictive interpretation of nationality laws. We are encouraged by the court a quo’s position of placing emphasis on our client’s right to equality and to be treated with dignity – these rights apply to all persons regardless of their nationality.