Press release: High court recognises child as stateless and declares her to be a SA citizen

Last week, the North Gauteng High Court  in Pretoria set a precedent by declaring a six-year-old child a South African citizen

The child was born to Cuban parents who, due to Cuban law, were not able to pass their citizenship to their child. The court made the order in line with Section 2(2) of the South African Citizenship Act, 88 of 1995. This section guarantees citizenship to children born in South Africa but do not have the nationality of any other country and whose births are registered in terms of the Births and Deaths Registration Act, 51 of 1992.

On 21 June 2013, Lawyers for Human Rights (LHR) launched a court case in the North Gauteng High Court on behalf of the child. This case explores the practical meaning of Section 28(1)(a) of the Constitution, which states “Every child has the right to a name and nationality from birth” and seeks clarity on Section 2(2) of the Citizenship Act, which provides South African citizenship to those born on the territory and who are stateless.

The child’s parents are Cuban nationals who cannot pass on their citizenship to their child due to having emigrated from Cuba. In terms of Cuban law, the child’s parents are considered “permanent emigrants”, because they have been living and working outside of Cuba for more than 24 months. As a result, Cuban law does not permit the child to obtain permanent residence in Cuba, which is essential to any Cuban citizenship claim. The child was born in the country without a nationality. Despite the child meeting the requirements of Section 2(2), Home Affairs declined to register her as South African under this provision and instead told her make discretionary applications for permanent residence and then naturalisation, since the mother recently became a permanent resident. LHR argued this decision violated the child’s constitutional right to “a name and nationality from birth”. Furthermore, the decision contradicts the primary purpose of Section 2(2) of the Citizenship Act, which was drafted to give stateless children the best protection under the law – citizenship by birth – as early as possible. Despite having submitted three permanent residence applications to the Home Affairs Department, the child remained without immigration status or nationality.

On 3 July 2014, LHR obtained an order declaring the child a South African citizen and directing the Home Affairs minister to issue her with a South African ID number and birth certificate. Given that there are no regulations accompanying Section 2(2) of the Act, there is no clear application procedure or guidelines on how to apply this provision in practice. Thus, the application was also brought in the public interest and on behalf of similarly situated children. As such, the court order further directed the minister to draft regulations to make the purpose of Section 2(2) achievable. Such regulations could include guidance on how to assess if an applicant is stateless. Regulations could also include an application form for 2(2) citizenship. At the moment, no application form exists and this section of the Citizenship Act is virtually unknown, even in Home Affairs’ head office.

The “otherwise stateless” provision provides a measure of security to children born in countries where nationality is not acquired through birth on the territory only (jus soli). South Africa is one of these countries. Citizenship is mainly acquired through descent. It is fortunate, therefore, that we are one of the few countries in Africa who have this “otherwise stateless” provision in our domestic law.

Unfortunately, to date, this safeguard was not being implemented by Home Affairs. The reason given to LHR was the fact that many people were applying for citizenship in terms of this provision. The fact that many people are attempting to access this pathway to nationality is an indication there is a great need for it and that it will play an important role in the prevention of statelessness. The implementation of this provision is vital.

“South Africa has a duty to prevent statelessness and to provide children born in its territory with a name and a nationality from birth. This responsibility is in line with the African Charter on the Rights and Welfare of the Child and other international law and standards. Our own Constitution entrenches this basic right and the state’s responsibility to protect it,” said LHR’s Liesl Muller.

LHR will make submissions to Home Affairs regarding the drafting of a regulation to Section 2(2) and will follow up on the implementation of the court order. LHR will work with Home Affairs to realise the purpose of this section.

ENDS