Report on Citizenship Law: South Africa Citizenship ‘by descent’ is now only applicable to persons adopted by a South African citizen (§2(3)). In all cases it is required that the birth be registered in terms of the Birth and Death Registration Act (No. 51 of 1992) (hereafter referred to as ‘the BDRA’): for local citizens that requires registration at the Department of Home Affairs and for South African citizens living abroad, registration with the Head of the South African diplomatic or consular mission. Importantly the SACA removed any distinction between the gender of parents, a shift from previous Apartheid legislation that had numerous clauses referencing specifically the status or occupation of the child’s father (§3-6, 1949). In recent years, amendments to the SACA have significantly restricted the acquisition of citizenship by persons born to non-South Africans on South African soil. The original legislation (SACA 1995) held that all who are born within the country to at least one parent who is a legal resident or citizen, and who is registered at birth according to the BDRA, is entitled to South African citizenship by birth (§2(1)(b); §2(2)(b)). Note that this precludes citizenship being granted to those whose parents are not lawfully admitted to the republic. In order to gain citizenship, a child had to be born to at least one parent who is legally permitted to be resident in South Africa. In fact, the SACA, according to some legal scholars was stricter than the practice allowed: Section 2(2)(b) states that “No person shall be a South African citizen by virtue of subsection (1)b if at the time of his or her birth, one of his or her parents – (b) had not been lawfully admitted to the Republic for permanent residence therein, and his or her other parent was not a South African citizen’. Legal scholars argue that this required either two parents with permanent residence or at least one parent with South African citizenship (Klaaren 2010; Keightley 1998). In practice, however, under the original SACA, the Department of Home Affairs interpreted this clause loosely, granting citizenship to children where there is one parent with permanent residence (Klaaren 2000:230). The 2010 amendment was therefore a significant shift in this respect: the amendment restricts acquisition of citizenship by birth for persons born in South Africa to non-citizen, but permanent resident parents, only upon reaching the age of majority, if they have lived in the Republic from the date of their birth (§2(3)).12 Under the current citizenship regime, children of permanent residents are therefore not citizens, which can have some consequences for their access to education and healthcare.13 In 2016 Lawyers for Human Rights (LHR) challenged the Department of Home Affairs’ interpretation that this clause did not hold retrospectively and so only applied to children born after 2013 (when the Act came into force). This case, Miriam Ali vs The Minister of Home Affairs14 found that the clause ought to apply 'irrespective of whether they were born before or after 1 January 2013'. One exception, known as the “statelessness exception”, to these requirements is that citizenship can be granted to individuals born in South Africa who do not ‘have the citizenship or nationality of any other country, or has no right to such citizenship or nationality’ (SACA §2(2)), so long as the birth is registered according to the BDRA. This is in line with §28 of the Constitution that guarantees for every child the right to a ‘nationality from birth’.15 Children who acquire citizenship through this channel are citizens ‘by birth’. These two forms of acquisition illustrate a jus soli element to acquisition of South African citizenship: children of non-citizen permanent residents (upon majority), as well as stateless children, are entitled to citizenship by virtue of having been born on South African 12 Note that, as of 2005, the age of majority is 18, as amended from 21 by the Children’s Act (No. 38 of 2005) Lawyers for Human Rights details a number of cases where a lack of a birth certificate prevents children from attending school (LHR 2017). 14 (case 15566/2016) [2017] ZAWCHC 94 (Wille AJ). 15 See Klaaren (2000) for the argument that this provision was established on principles of jus soli, suggesting South Africa relies on jus soli to a greater extent than many other states (230, ftnt 49). 13 RSCAS/GLOBALCIT-CR 2018/1 - © 2018 Author(s) 7