Court rules Citizenship Act applies retrospectively to children born in South Africa to foreign parents
Source: Legal Resources Centre (South Africa)
In the Western Cape High Court today, 07 September 2017, a judgment was handed down which affirms that children who were born in South Africa to foreign parents are entitled to apply for citizenship, through the South African Citizenship Act 88 of 1995, even if they were born before the 2010 Amendment, which came into effect in 2013.
The applicants, represented by the Legal Resources Centre, were all born in South Africa to foreign parents before 2013 and have now reached majority (over 18). They meet the requirements for applying for citizenship in terms of Section 4(3) of the Citizenship Act, in that they were born in South Africa and have the lived here since their births, and they have birth certificates attesting to their birth in South Africa.
The Department of Home Affairs refused to consider their applications, arguing that Section 4(3) was introduced through the Amendment Act of 2010, which came into effect in 2013, and therefore only applies to children born after 2013. This would mean that the section can only be implemented for those turning 18 after 2031. They further asserted that there is no prejudice to the applicants because they can apply for refugee status or permanent residency.
The LRC approached the High Court on behalf of the applicants, arguing that the refusal to consider the applications for citizenship is prejudicial to our clients in a real way, having not only practical implications, but also infringing on constitutional entitlements. But not allowing them citizenship, the Department is consigning them, unlawfully, to remain as non-citizens in the country that they have lived in since birth and is the only country they know.
This non-citizen status also renders the applicants vulnerable to hostilities directed at them.
The judgment in the High Court agrees that there are constitutional entitlements at stake, including the right to dignity. It further states that, “the applicants have a statutory right to apply for citizenship and the respondents cannot limit or interfere with this right by contending that “no prejudice flows”.
The Court also agreed with the argument by the LRC that the Department of Home Affairs is interpreting the principle of retrospectivity incorrectly and that, in this instance, the Amendment Act should be read retrospectively because the applicants are not taking away any vested rights or creating new obligations. They simple want their statutory rights to be given effect to. Furthermore, the judgment states that the Department’s interpretation of the Amendment Act, “takes no account of the duty to intepret statutes in a manner that promotes the spirit, purport and object of the Bill of Rights…”
While the Court did not direct the Department to provide the applicants with citizenship, the Court did direct the Department to accept the applications for citizenship from the applicants and make a decision on the applications within ten days.
The Court also directed that the Amendment Act must be interpreted to include children born before 2013.
The LRC are pleased with the judgment, which affirms the rights of our clients to be treated with dignity and not to be rendered non-citizens through the wrongful interpretaton of statutes.
The instructing attorney is William Kerfoot from the Cape Town office.