Realising the Child’s Right to a Nationality in South Africa The Constitution enshrines the paramountcy of the best interests of the child in all matters which affect the child. It is a substantive right, as well as an interpretive principle and a procedural rule.62 It does not specify, however, what the best interests of the child might entail in every possible situation, which would depend on each individual case. However, courts often develop the content of this right in different situations, providing a guide for future courts applying it to new cases. In response to the Department’s argument that DGLR was able to apply for permanent residence and that it was therefore unnecessary to grant her citizenship, the Court clarified that permanent residence is not a substitute for citizenship and it is not in the best interests of the child to have permanent residency instead of citizenship.63 This clarification and development of the best interest principle in the context of nationality matters is important to future applications of the section in both the courts and when the Department is determining a child’s immigration status, particularly where the Department is reluctant to grant citizenship. The Department raised three interpretative issues which would have been detrimental to the implementation of s 2(2) but for the Court’s subsequent clarification. The Department argued that the handwritten birth certificate issued to DGLR does not qualify as birth registration ‘in accordance with the Births and Deaths Registration Act’, which is required for the Citizenship Act for s 2(2) to apply.64 A handwritten birth certificate is issued to all children born in South Africa who are not citizens, permanent residents or refugees. It means that their births are recorded but not entered into the National Population Register.65 The Department held that only those whose particulars are entered into the National Population Register are registered for the purposes of the BDRA. The Court did not accept this line of reasoning and concluded that the handwritten birth certificate was registration in line with the BDRA (which states that the issuance of a birth certificate is a registration of birth).66 This interpretation is crucial to the operation of s 2(2). If the Department’s position were correct, it would mean that hardly any stateless children would qualify for citizenship in terms of s 2(2) because stateless children in South Africa are unlikely to have permanent residency or refugee status. The Department’s second interpretive contention was that DGLR was not stateless because her parents were Cuban nationals.67 This reveals a basic misunderstanding of the way in which nationality laws operate differently in each country and do not necessarily afford citizenship to all children born to its citizens anywhere in the world, as is the case in South Africa. This primary misunderstanding of citizenship law led the Department to assume the child’s citizenship without considering the actual laws and actions of the state involved. The Department’s position was that Cuba ought to grant DGLR citizenship and 62 63 64 65 66 67 UN Committee on the Rights of the Child, General Comment No 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration, UN Doc CRC/C/GC/14 (29 May 2013) [6]. DGLR, ‘Reasons for Order’ (n 53) 5 [12]. Minister of Home Affairs and Others, ‘Appellants’ Heads of Argument’ in DGLR Appeal (n 60) 10–12 [25]–[29]. Sindisiwe Moyo, ‘South Africa: Birth but Not Birthright’, Rosalux (Blog Post, 18 January 2021) <https://rosalux-geneva.org/south-africa-birth-but-no-birthright>. Births and Deaths Registration Act No 51 of 1992, s 5(3) (Republic of South Africa) (‘BDRA’). DGLR, ‘Respondents’ Heads of Argument’ in DGLR Appeal (n 60) 8 [22]. 265