2022 Statelessness & Citizenship Review C 4(2) Jose v Minister of Home Affairs and Minister of Home Affairs v Ali 4. Citizenship by Naturalisation … (3) A child born in the Republic 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; and (b) his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act No 51 of 1992).95 Two cases pertaining to s 4(3) of the Citizenship Act have been adjudicated in the South African courts — the cases of Jose and Ali. As in the DGLR case, s 4(3) had not been implemented since its inclusion in the Citizenship Act for want of a regulation and because of conflicting interpretive positions. Both these cases declared the applicants to be South African citizens while clarifying the correct interpretation of the Act. In Ali, the Department was ordered to issue regulations providing a form to facilitate applications for citizenship at local offices. The applicants in both cases were born to asylum seekers in South Africa and had lived in South Africa from the time of their birth until the age of 18 years. The importance of these two cases lies in the courts’ finding that s 4(3) is applicable retrospectively, applying to all persons born before its inclusion in the Citizenship Act in 2013. The Jose case goes further than Ali in that it also declared that the Minister does not have the discretion to deny these applications once all the prescribed requirements have been met, unlike in naturalisation matters. Section 4(3) is an important safeguard against statelessness, in that those who are born to refugees and live in South Africa all of their lives are likely to have lost ties with their parents’ country of origin, making it difficult, if not impossible, to apply for citizenship in that country. In addition, many southern African countries did not allow dual citizenship until very recently and their laws provide for the deprivation of citizenship if the individual was born in another country and did not formally opt into its citizenship and renounce the citizenship of the country where they were born.96 Such provisions ignore the fact that the person may not acquire the nationality of their country of birth and assumes that they have done so, automatically cancelling that person’s citizenship, leading to statelessness. Section 4(3) recognises the genuine link that a person forms with the country in which they are born and raised and the likelihood that they will remain there, as well as the fact that they may lose the citizenship of their parents’ country of birth at the age of majority. It is therefore important that this section is implemented and facilitated by regulations. The Department is yet to promulgate regulations on this section and no further applications have been granted to the anecdotal knowledge of practitioners in the sector. Some lawyers in the field have reported that rejections have been received during 2022, the reasons for rejection being the fact that an applicant’s parent has permanent residence. Litigation on this faulty 95 96 Citizenship Act (n 24) s 4(3). This section was added by the 2010 Citizenship Amendment Act (n 39). See Manby, Citizenship in Africa (n 34) 73–74. 270