9. In addition to various gaps in the law, the biggest challenge is implementation, with the lack of documentation being the most significant factor which leads to statelessness or the risk of statelessness in the country. While birth registration rates are higher than ever before, as evidenced by the report of South Africa to the Committee, the births of over 10% of children are still not registered within one year. It is the most marginalised and vulnerable groups – including those listed above who are stateless or at risk of statelessness, who disproportionately fall within this group of children whose births are not registered. Issues of concern related to the right to a nationality and suggested questions for the state party’s review Discriminatory application of the pre-requisite of birth registration 10. Section 2(1) of the Citizenship Act 88 of 1995 (as amended in 2010) which sets out the jus sanguinis citizenship rule, states that: Any person – (a) who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010, was a South African citizen by birth; or (b) who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth. 11. By contrast, subsequent provisions which provide citizenship to a) children born on the territory who would otherwise be stateless (Section 2(2)); b) children born on the territory and who have lived in South Africa until age of majority, and whose parents are permanent residents (Section 2(3)); and c) children adopted by South African citizens (Section 3); impose the additional requirement of birth registration. 12. Given the low birth registration rates in the country and the fact that the children of vulnerable and marginalised parents – particularly undocumented persons who themselves are stateless or at risk of statelessness – are less likely to have their births registered than the children of persons who have documented evidence of their South African citizenship, the condition of birth registration for the purpose of granting citizenship under Section 2(2) is both disproportionate and discriminatory. This condition also undermines the purpose of protecting all children from statelessness and ensuring that all children have the right to a nationality. 13. Furthermore, the stipulation under Section 2(3) that children born on the territory to parents who are not citizens can only acquire citizenship after they turn 18 is disproportionate, discriminatory and contrary to the best interests of the child.8 This provision is also at odds with the South African Constitution which provides for citizenship at birth. 14. Finally, treating adopted children differently to the biological children of South African parents by requiring birth registration of the former and not the latter in order to acquire citizenship amounts to discrimination which also undermines the child’s right to acquire a nationality. This is particularly so in light of the principles of non-discrimination and the best interests of the child under the Convention and the fact that Section 242(3) of the Children’s Act 38 of 2005 states that an adopted child must for all purposes be regarded as the child of the adoptive parent and the adoptive parent must for all purposes be regarded as the parent of the child. Section 3 of the Citizenship Act also arbitrarily distinguishes between adopted and biological children by naming adopted children citizens by “descent” as opposed to biological children who are referred to as citizens by birth. 8 See for example, General Comment 6 of the African Committee of Experts on the Right and Welfare of the Child 3