Court rules Citizen­ship Act applies retrospectively to children born in South Africa to foreign parents

Published: 7/Sep/2017
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.

Read original on LRC website:

Themes: Acquisition of nationality, Acquisition by children
Regions: South Africa
Year: 2017