Report on Citizenship Law: South Africa such a child may go about acquiring citizenship through the exemption. Simply put, if the regulations have not created a form or procedure for the application, it becomes de facto impossible to make the application, without the help of a third-party organisation such as Lawyers for Human Rights (LHR), and frequently, court action. The Department of Home Affairs recently settled one such case and agreed to both grant ‘citizenship by birth’ to the stateless child of Cuban parents21 and to add regulations to §2(2) within 18 months to enable stateless children to acquire citizenship as allowed through the Act (Evans 2016).22 This settlement was agreed upon in September 2016, and according to LHR, the child has yet to be granted citizenship by the Department over a year later (LHR 2017). The regulations with regards to the ‘statelessness exemption’ are due to be added by early 2018. 4.2. The Challenge of Registering Births In addition to the above-mentioned failure to create regulations for stateless children, Regulation 12 of the BDRA has also created a serious barrier to registering birth in certain cases, thus making children in those cases ineligible for citizenship given that registration is a requirement of acquiring citizenship by birth (§2(2)(b)). The issue is that when a child is born out of wedlock, Regulation 12 of the BDRA allows only mothers to register the birth. The mother has to have a valid identity document or passport with a valid permit to register the child’s birth (Regulations 3,4,5). As such undocumented mothers cannot register their children. Even if the father of the child is a South African citizen, he cannot register the child or pass on his citizenship. This regulation effectively leaves children born out of wedlock to undocumented or absent mothers unable to become registered, regardless of the status of their father. As a result, children in these cases remain undocumented, and so effectively unable to acquire or make use of their citizenship.23 4.3 Minister’s Discretion: In recent times, controversy has arisen over the Minister’s discretion to grant naturalisation without fulfilment of residency requirements (§5(9)). It has become apparent that the Minister (when this role was filled by Malusi Gigaba) has used this discretion to grant citizenship to the now infamous Gupta brothers in 2013 (McKaiser 2017). Given the large corruption scandal surrounding them, and accusations of foreigners ‘capturing the state’, the fact that they were granted citizenship through an exemption has come under fire (McKaiser 2017). Most significantly, the Minister did not declare this exemption in parliament as required by the SACA (§5(9)(b)). This scandal highlights possible concern for the scope of discretion allowed to the Minister of Home Affairs in naturalisation (§5(9)(a)). 21 Cuba has very strict citizenship laws: Cuba does not allow children to obtain citizenship by birth if they are born outside Cuba to parents who are considered permanent immigrants (a status which is acquired after only 11 months) (Evans 2016). 22 The Department settled after initially applying for leave to appeal the Pretoria High Court decision DGLR & KMRG v Minister of Home Affairs and Others (38429/13) GNP [2015] (Motajane). 23 For more detailed explanations of a number of problem cases, see “Childhood Statelessness in South Africa (LHR 2016). RSCAS/GLOBALCIT-CR 2018/1 - © 2018 Author(s) 13