THE LAW IS NOT ENOUGH: REALISING THE CHILD’S RIGHT TO A NATIONALITY IN SOUTH AFRICA LIESL H MULLER* The Republic of South Africa (‘South Africa’) boasts some of the most progressive and inclusive citizenship laws on the African continent, protecting the right to citizenship in both its constitution and subsidiary legislation and affording special protections to children. A simple exercise in comparative law would find that there is no statelessness problem in South Africa but that would be incorrect. A closer look at the implementation of the laws reveals serious problems in the Government’s nationality administration, resulting in statelessness. In the South African context, it is not immediately possible to tell whether a child is stateless. It is only once attempts have been made to obtain (recognition of) citizenship and those attempts have failed (because of a faulty system) that a determination can be made. Under customary international law, a person is stateless because of non-recognition of citizenship by any state, whether legally or illegally. As a result, nationality administration procedures are as important as laws. South Africa’s failure to formally recognise its citizens because of insurmountable administrative barriers and discriminatory practices is making children in South Africa stateless, rendering its impressive laws useless. This article provides a brief analysis of the historical and legislative context within which South Africa finds itself, then analyses recent jurisprudence on childhood statelessness to illustrate how the right to administrative justice is crucial to South Africa’s trajectory of success in ending childhood statelessness, offering recommendations for the way forward. TABLE OF CONTENTS I II III IV V VI * Introduction........................................................................................................... 257 Historical Context: Colonisation, Apartheid and the New South Africa’s Selective Rainbow Nation .................................................................................................... 257 A The Union of South Africa (1910–48) ..................................................... 258 B Apartheid South Africa (1948–94) ........................................................... 260 C The New South Africa (Post-1994) .......................................................... 261 The Child’s Right to a Nationality in South Africa: A Jurisprudential Breakthrough .............................................................................................................................. 263 A DGLR v Minister of Home Affairs .......................................................... 263 B Chisuse v Director General, Department of Home Affairs ...................... 267 C Jose v Minister of Home Affairs and Minister of Home Affairs v Ali..... 270 D The Naki Case .......................................................................................... 271 Crucial Outstanding Gaps in the Law — A Special Dispensation for Children on the Move ............................................................................................................... 272 A Foundlings ................................................................................................ 272 B Children on the Move — Unaccompanied and Separated Migrant Children at Risk of Statelessness ............................................................................. 273 Under the Non-operation of Its Law — A Call for Due Process .......................... 275 A Does the Official Definition of Statelessness Include Those Who Are Without Nationality Because of Undue Process? ..................................... 277 Conclusion ............................................................................................................ 279 Liesl H Muller is an attorney of the High Court of South Africa LLB (UP) LLM (WITS) LLM (UP). She led the Lawyers for Human Rights Statelessness Project from 2013 to 2020 and represented stateless clients in several landmark nationality rights cases before the South African courts. She recently graduated from the Master of Laws in Human Rights and Democratisation in Africa at the University of Pretoria. She is currently practising as an attorney at the Centre for Child Law (University of Pretoria), continuing the fight for children’s rights, including in nationality matters. This article is an adaptation of a thesis submitted in February 2018 toward her master’s degree in law.