CASE NOTE THE SOUTH AFRICAN CONSTITUTIONAL COURT DECIDES AGAINST STATELESSNESS AND IN FAVOUR OF CHILDREN: CHISUSE V DIRECTOR-GENERAL, DEPARTMENT OF HOME AFFAIRS [2020] ZACC 20 MIHLOTI BASIL SHERINDA AND JONATHAN KLAAREN* TABLE OF CONTENTS Background............................................................................................................ 178 The Relevant Statutory Framework....................................................................... 179 Conclusion ............................................................................................................. 181 The 2020 case Chisuse v Director-General, Department of Home Affairs1 (‘Chisuse’) of the Constitutional Court of South Africa (‘Constitutional Court’) comes at a crucial moment in South Africa’s post-apartheid trajectory, where the circle of citizenship is ‘shrinking’.2 The Constitutional Court decided in favour of four of the five foreign-born applicants — all children with one citizen parent — who had sought an order to be registered as citizens by the relevant government department, the Department of Home Affairs (‘DHA’).3 The applicants argued that the DHA’s interpretation of the amended citizenship law violated their constitutional rights.4 Not deciding the matter on a constitutional basis, the Constitutional Court creatively and authoritatively interpreted the statutory regime in favour of the applicants.5 An example of the Court’s important national role in upholding a human rights-based vision of South African citizenship against persistent and potentially growing bureaucratic opposition, Chisuse also displays an interpretive approach both mindful of the risks of child statelessness and * 1 2 3 4 5 Mihloti holds an LLB, PDM and LLM (in Human Rights Advocacy and Litigation) from the University of the Witwatersrand. He works at the Helen Suzman Foundation, a South African think tank and human rights institute, as a Legal Research Intern. Jonathan holds a PhD in sociology from Yale University and law degrees from Columbia University (JD) and Wits University (LLB). He has authored From Prohibited Immigrants to Citizens: The Origins of Citizenship and Nationality in South Africa (2017). The authors take responsibility for any errors and would like to thank Liesl Muller, a public interest attorney acting for the applicants in this case, for her invaluable assistance in this research. Chisuse v Director-General, Department of Home Affairs [2020] 6 SA 14 (Constitutional Court) (‘Chisuse’). Christine Hobden, ‘Shrinking South Africa: Hidden Agendas in South African Citizenship Practice’ (2020) 47(2) Politikon 159, 159. Chisuse (n 1) 5–6 [7], 40 [92]. ibid 11 [22]. ibid 29–36 [64]–[78].