2022 IV Statelessness & Citizenship Review 4(2) CRUCIAL OUTSTANDING GAPS IN THE LAW — A SPECIAL DISPENSATION FOR CHILDREN ON THE MOVE Two categories of children remain at risk of statelessness because of a gap in the otherwise comprehensive South African laws. They are foundlings and unaccompanied migrant children. A Foundlings The Citizenship Act does not clearly state which nationality rights should be afforded to foundlings in South Africa. In practice, foundling children under two years of age are granted South African nationality under (presumably) s 2(2) of the Citizenship Act, which provides nationality to children who are born in South Africa but who would otherwise be stateless.102 A key requirement of this section is that the child is born in South Africa. Where a child is found at a young age it can easily be assumed that the child is born in the territory and the Department is not opposed to registering them as South African citizens. In 33 Children and ABBA v Minister of Home Affairs,103 the Department agreed to register the 33 children as South Africans, even though their place of birth was unknown. All the children were approximately two years old or younger, making it easy to assume that they were born in South Africa. The resolution of status for this category of foundling is thus relatively unproblematic. However, when foundling children are older, the Department does not automatically grant citizenship nor register the birth of such children, particularly where there are clues that they might be foreign. In a case that has not reached the courts, Lawyers for Human Rights made an application to the Department for citizenship based on the assumption that a child, Manny,104 was born in South Africa and was stateless (arguing in the alternative for permanent residence on special discretionary grounds).105 Manny was found at the age of two and placed in alternative care by the Department of Social Development. Because Manny was found with an unrelated woman who spoke Portuguese, the authorities were reluctant to grant him nationality, even though his is exactly the kind of case for which s 2(2) is designed. The fact that he was in the care of a Portuguese-speaking woman caused the authorities to think that he may be Angolan. This approach ignored the fact that the language of caregivers or parents does not prove or guarantee the nationality of the closest country that speaks that language. Manny’s social worker spent years attempting to acquire a birth certificate and citizenship from the Angolan embassy to no avail. There was not sufficient proof that his parents were Angolan. The Department should have granted Manny South African citizenship under s 2(2) of the Citizenship Act. However, in 2016, the Department 102 See Lawyers for Human Rights and Institute on Statelessness and Inclusion, Joint Submission to the UN Human Rights Council at the 27th Session of the Universal Periodic Review, 22 September 2016, [30]. 103 ABBA Specialist Adoption & Social Services v Minister of Home Affairs (High Court of South Africa, Case No 9779/19, commenced 12 February 2019). See also Tessa Peacock and Paula Proudlock, ‘ABBA Specialist Adoption and Social Services and Others v Minister of Home Affairs and Others: Case Note’ (forthcoming). 104 Not his real name. 105 Childhood Statelessness in South Africa (Institute for Statelessness and Inclusion and Lawyers for Human Rights 2017) 9. 272