South Africa: LHR in court over client’s 4-year wait on Department of Home Affairs decision

Published: 6/Sep/2022
Source: Lawyers for Human Rights (Pretoria)

[Press statement] LHR’s Statelessness Project is in the Pretoria High Court today representing a stateless person who has waited 4 years for a decision from the Department of Home Affairs (DHA) on his application for legal status. Mr. Kganyapa has lived in South Africa for over 40 years. He was born in Lesotho in 1961 and fled to South Africa in the early 1980s following the political assassination of his father. In the early 1990s, ahead of the first democratic elections in 1994, DHA issued him a South African identity document (ID). This ID was renewed in 2010 and he was even issued a South African passport. The issuing of these documents gave Mr. Kganyapa the legitimate belief that he had been granted South African citizenship, and his good faith reliance on the documentation led him to establish a life in South Africa; for decades he continued to live and work in South Africa, he voted in every election since the 1994 elections, he got married and started a family in South Africa. South Africa was home.

It was only in 2014 that Mr. Kganyapa discovered that the DHA had invalidated his South African documentation by blocking or marking his ID. He discovered this after his bank account was frozen and he was directed to make an enquiry at DHA. He was informed that DHA had taken this decision on suspicion of him being an “illegal foreigner”. His attempts to explain how he had obtained he documentation and to get the block or marker lifted were unsuccessful. To make matters worse, Mr. Kganyapa soon his realised his problems were bigger when he approached the Lesotho authorities for assistance, and he was informed that he was no longer recognised as a citizen of Lesotho. He was stateless.

Mr. Kganyapa has been living in a legal limbo since 2014. Without a nationality and identity documentation he cannot work and support his family anymore, he cannot register his marriage, he cannot register the births of his two minor children who were born in South Africa, and he cannot travel anywhere. He lives in constant fear of arrest and detention.

This case highlights two important legal issues:

  1. the DHA’s ID blocking practice is unconstitutional and unlawful as it is carried out without notice, without reasons and without an opportunity to challenge the decision as required by the Promotion of the Administration of Justice Act – due process is vital particularly where legal safeguards against statelessness must be considered; and
  2. there are inadequate laws in South Africa to address the issue of statelessness. The South African Citizenship Act makes provision for children who are born in South Africa, and would otherwise be statelessness, to acquire citizenship by birth. However, South Africa has not established a Statelessness Determination Mechanism to determine eligibility nor published regulations that prescribe the administrative process to follow in submitting such an application. Furthermore, this option is only available to stateless people who are born in South Africa – stateless people who are born outside of South Africa can only access legal status by applying for a ministerial exemption under Section 31(2)(b) of the Immigration Act. However, these applications are also fraught with difficulties. The application process is ambiguous and complex, it is a discretionary process, and it often takes several months or years to receive a decision.

In Director General of the Department of Home Affairs v De Saude Attorneys [2019] ZASCA 46 (29 March 2019), the Supreme Court of Appeal addressed the DHA’s unreasonable delay in processing over 400 visa and permit applications. The SCA specifically noted the impact of these undue delays on applicants:

“For a foreigner in South Africa these permits are the single most important documents that they can possess. It is the basis of their legal existence in this country. Every aspect of their lives – the ability to travel freely (S 21 of the Constitution); the ability to work and put food on the table for their families (a component of the right to dignity in S 10 of the Constitution and see Minister of Home Affairs v Watchenuka….); the ability to keep their children in school (SS 28 and 29 of the Constitution); and the basic right to liberty (S21 of the Constitution) – is dependent on the physical possession of a valid permit.”

Not only must Mr. Kganyapa grapple with the same issues, but he also faces the additional vulnerability of being stateless indefinitely.

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Themes: Birth Registration, ID Documents and Passports, Statelessness
Regions: South Africa
Year: 2022