Statelessness & Citizenship Review
2020
2(1)
May 2011, respectively, the couple were granted permanent residency. 4 The
couple has three children, all born in South Africa after their parents were granted
permanent residency. 5 The two older children are recognised as South African
citizens by birth. 6 The youngest, Gaddiel, who is the third applicant, is not,
although his birth in 2017 was registered in compliance with the Births and Deaths
Registration Act. 7 Gaddiel was born after the amendments to the SACA came into
force. 8 Those amendments remove the right of children of South African
permanent residents to qualify for citizenship at birth. 9
Mr and Mrs Mulowayi sought to naturalise in South Africa. 10 Upon making
inquiries, officials at the Home Affairs Department informed the couple that they
must wait at least five years before making their application and also that they
must renounce their Congolese citizenship, in compliance with SACA. 11 In
December 2015, the applicants renounced their Congolese citizenship and in 2016,
they applied for naturalisation. 12 In October 2016, the Director-General of the
Home Affairs Department (‘Director-General’) refused their application on the
basis that reg 3(2)(a) creates a minimum period of 10 years permanent residency
as qualification for citizenship. 13 As a result of this decision, and since the first
and second applicant had renounced their Congolese citizenship, all three
applicants are stateless. 14
The High Court ruled reg 3(2)(a) to be ultra vires, irrational and inconsistent
with s 238 of the Constitution of the Republic of South Africa (‘Constitution’) and
therefore invalid. 15 However, it suspended the declaration of invalidity pending a
confirmation of its order by the Constitutional Court. 16 The High Court set aside
the decision of the Director-General and directed that the application be
reconsidered within two months. 17 The High Court was silent with respect to
Gaddiel, other than that he ought to be placed in a position where he too can qualify
for South African citizenship. 18
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8
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15
Mulowayi (n 1) 3 [4].
ibid 3 [5].
ibid.
ibid; Births and Deaths Registration Act 1992 (South Africa) (‘Birth and Death Registration
Act’). Compliance with the Births and Deaths Registration Act is a requirement under s
2(2)(b) SACA.
The South African Citizenship Amendment Act 2010 (South Africa) (‘Amendment Act’) came
into force on 1 January 2013.
ibid s 2(3).
Mulowayi (n 1) 4 [6].
ibid. Section 5(1)(h) of SACA (n 1) makes renunciation of citizenship a requirement where
the applicant’s country does not permit, as is the case with the Democratic Republic of Congo,
for its nationals to hold dual citizenship.
Mulowayi (n 1) 4 [6].
ibid 4 [7].
ibid 4 [8].
ibid 7 [16], 7–8 [18]. See also Constitution of the Republic of South Africa Act 1996 (South
Africa) s 238(a) (‘Constitution’), which states that:
An executive organ of state in any sphere of government may—
delegate any power or function that is to be exercised or performed in terms of
legislation to any other executive organ of state, provided the delegation is consistent
with the legislation in terms of which the power is exercised or the function is
performed.
16
17
18
Mulowayi (n 1) 8 [19].
ibid 8 [19].
ibid 7 [17].
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