2022 Statelessness & Citizenship Review 4(2) South Africa. A lack of due process affects both citizenship by birth and naturalisation, and the deprivation of citizenship through identity blocking. Existing South African laws relating to the right to nationality are either not implemented by the state or are implemented in an unlawful way without regard to prescribed formal procedures, resulting in the violation of nationality rights.122 In addition, recourse mechanisms are insufficient or inaccessible to the average person to remedy failures of the administrative system. In the cases discussed previously, parents were denied birth registration and citizenship documents for their children without being provided with a written decision, written reasons for the rejection or an opportunity to make representations or appeal the decision. Without these procedural safeguards, children remain undocumented for years, having been denied recognition of their citizenship by the state and are therefore stateless. In South Africa, citizenship is determined at the point of birth registration, therefore, the denial of a birth certificate amounts to denial of one’s South African citizenship. Where a child’s parent is arbitrarily deprived of citizenship, the child is automatically blocked on the National Population Register.123 The state places the burden of proof on the individual to prove their citizenship again124 and the child will be regarded as a foreigner until such time as they have successfully proven their citizenship. The Constitution pre-empts this kind of injustice through its inclusion of s 33, which specifically protects the right to administrative justice.125 Administrative justice, constitutionally construed, is government action that is lawful, reasonable and procedurally fair.126 Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. 127 This right is given effect by the Promotion of Administrative Justice Act No 3 of 2000, which provides additional directions on how to ensure efficient administration and fair administrative practices in government decision-making.128 This right ensures that whenever a decision is made (or fails to be made) which affects an individual’s citizenship, prescribed processes must be followed that will allow the individual to challenge the state’s conduct. The High Court in Nzama v the Minister of Home Affairs129 held that the Minister’s failure to make formal decisions on citizenship applications is a violation of the Constitution. In this case, the applicant’s identity number was blocked for more than 10 years, during which he was unable to register his children or add them to his medical aid,130 and was unable to be admitted as an attorney 122 See, eg, The World’s Stateless: Deprivation of Nationality (Institute on Statelessness and Inclusion 2020) 52. 123 Lawyers for Human Rights, Submission to the South African Human Rights Commission on 124 125 126 127 128 129 130 DHA ‘Blocking’ Identity Documents, 22 August 2022 <https://www.lhr.org.za/lhrresources/submission-to-the-south-african-human-rights-commission-on-dha-blockingidentity-documents>, archived at <https://perma.cc/YG5Z-3NHT>. Roni Amit, ‘Above the Law: Securitisation in South Africa’s Migration Management Regime’ in Marie-Claire Foblets and Jean-Yves Carlier (eds), Law and Migration in a Changing World (Springer 2022) 649, 675. Constitution (n 3) s 33. ibid. ibid. Promotion of Administrative Justice Act No 3 of 2000 (Republic of South Africa). Nzama (n 48). ‘Medical aid’ is the equivalent of health insurance in South Africa: see John E Ataguba and Jane Goudge, Private Medical Aid Membership (Health Economics Unit Policy Brief, January 2013). 276