Realising the Child’s Right to a Nationality in South Africa III THE CHILD’S RIGHT TO A NATIONALITY IN SOUTH AFRICA: A JURISPRUDENTIAL BREAKTHROUGH South Africa’s courts have handed down four precedent-setting judgments in the past 10 years on the proper implementation and interpretation of the Citizenship Act and one on the BDRA (which directly affects citizenship). The relevant courts are the High Court of South Africa (‘High Court’), whose decisions can be appealed to the Supreme Court of Appeal of South Africa (‘Supreme Court of Appeal’) and theirs in turn to the Constitutional Court of South Africa (‘Constitutional Court’). The Constitutional Court is the highest court of South Africa and may decide constitutional matters.50 The Constitutional Court makes the final decision on whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court or a court of similar status before that order has any force.51 Two of the aforementioned cases were ultimately heard before the Constitutional Court for confirmation of constitutional invalidity — Chisuse v Director General, Department of Home Affairs (‘Chisuse’) and Centre for Child Law v Director General, Department of Home Affairs (‘Naki’).52 These concerned the interpretation of the Citizenship Act as it relates to citizenship by birth and equality in birth registration and acquisition of nationality. The two other cases were finally decided by the Supreme Court of Appeal as there were declarations of rights but no legislation was declared invalid — DGLR v Minister of Home Affairs (‘DGLR’) and Minister of Home Affairs v Ali (‘Ali’).53 These addressed the interpretation of the ‘otherwise stateless’ provision (s 2(2)) and the provision granting citizenship to foreign children born in the territory at the age of 18 years (s 4(3)). Another case was finally decided in the High Court — Jose v Minister of Home Affairs (‘Jose’)54 — that dealt with the same matter. Each is discussed in turn with an analysis of their significance. A 2. DGLR v Minister of Home Affairs Citizenship by Birth … (1) Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (1) shall be a South African citizen by birth, if— (a) 50 51 52 53 54 he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and Constitution (n 3) ss 166, 167(3). ibid s 167(5). Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20 (‘Chisuse’); Centre for Child Law v Director General: Department of Home Affairs [2021] ZACC 31 (‘Naki’). DGLR v Minister of Home Affairs (High Court of South Africa, Matojane J, 3 July 2014) (‘DGLR’); Minister of Home Affairs v DGLR (High Court of South Africa, Matojane J, 11 March 2015) 5 [12] (‘DGLR, Reasons for Order’); Minister of Home Affairs v Ali (1289/17) [2018] ZASCA 169 (30 November 2018) (‘Ali’). Jose v Minister of Home Affairs [2019] ZAGPPHC 88 (‘Jose’). 263