the blocking of his identity number and effective denial of his citizenship. The court had to
intervene and found that such administrative practices are unjust and unconstitutional.
25. The High Court’s findings in Nzama are in line with the judgement by the African Court on
Human and Peoples’ Rights (ACtHPR) in Anudo v Tanzania. 44 The ACtHPR expanded upon the
international law on deprivation of citizenship by finding that arbitrary denial of citizenship
amounts to arbitrary deprivation of citizenship which is prohibited by international law. The
judgement goes further to find that the burden of proof in such cases falls on the state and
not on the individual. The court relies on articles 13 and 14 of the ICCPR which guarantees due
process. The same is provided for under article 7 of the African Charter on Human and
Peoples’ Rights (ACHPR).
26. These cases demonstrate the crucially important role administrative justice (due process)
plays in access to the right to a nationality. The Nzama case is but one of the many cases
which have been brought before South African courts on the same bases (mainly by Lawyers
for Human Rights (LHR)), and the many complaints which are recorded in the law clinic at LHR.
In addition, many cases of refusal of birth registration have been recorded by LHR and CCL,
with many other such refusals reported by partner NGOs across the country. This is but a small
representation of the nationwide situation.
27. There are two crucial solutions to this problem:
a. First, the adoption and implementation of standard operating procedures (SOPs) for
the administration of nationality and birth registration applications or denials
(deprivation), and investigation of existing citizenship matters. These SOPs should set
out procedures in line with the PAJA and the Constitution, including providing written
decisions and reasons to persons affected by administrative decisions pertaining to
their nationality administration. The SOPs should be made available to all DHA offices
and compulsory training must be provided to all offices and frontline officials.
b. Second, establishing an independent monitoring body to whom contested nationality
related decisions may be referred for mediation without having to resort to High
Court judicial review (which should remain available as a remedy of last resort). This
could take the form of an internal, but independent, appeals authority or
inspectorate. Examples of such a body are already available for other administrative
systems in South Africa.
IV.
Implementation of Court Judgments
28. In recent years, there has been growing jurisprudence on statelessness and the right to
nationality in South Africa. South African courts have issued various progressive judgments
that have the potential to contribute to the reduction, prevention and eradication of
statelessness in South Africa. However, the DHA has failed to ensure effective implementation
of these judgments. This is demonstrated in the following cases.
44
African Court on Human and Peoples’ Rights, App No 012/2015 (22 March 2018).
10