A child born out of a relationship where one of the parents is a South African citizen is eligible to South African citizenship on the basis of descent. This is despite the fact that the child might have been born outside the borders of South Africa. However the birth of the child must be registered first in South Africa before citizenship is granted. What then is the position of a child born of foreign parents in the borders of South Africa with regards to citizenship?
The above question was settled by the Courts in a long protracted battle in the case of Minister of Home Affairs vs Miriam Ali and others (1289/17) 2018 ZASCA 169. In this matter, the Respondents had all been born in South Africa to parents with foreign citizenship. However they had attained majority age and needed to be recognized as citizens and so they went to apply but were turned away by the Department owing to two major stumbling blocks. Firstly that the Citizenship Amendment Act of 2010 had no gazetted regulations to provide for forms upon which applications can be made. This was an administrative shortcoming by the department itself. Secondly, the amendment came into effect in January 2013 and the Department argued that it could not apply retrospectively; it only applied to children born after the amendment came into effect in January 2013. The Department argued that even those who attained majority age after January 2013 were not eligible.
The Western Cape High Court ruled that the applicants had been treated unfairly and directed that the Department issue them with citizenship upon applications by way of affidavits since the regulations had not been formulated as yet. The Department appealed to the Supreme Court of Appeal which maintained the decision of the High Court. The Department did not comply with the order and instead decided to appeal to the Constitutional Court which refused to hear the matter largely because time frames had not been adhered to and justified. Further, the Constitutional Court ordered that the Department declare that Section 4(3) of the Amendment Act of 2010 which came into effect in January 2013 is applicable to children born before or after 2013 who met the requirements.
This case put to rest the long court battle and the position is now clear. The Department has since completed the regulations and will invite comments before gazetting.
