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
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