South Africa: M.M.E and Others v Director General, Department of Home Affairs and Another
Published: 12/Mar/2025
Source: High Court of South Africa (Gauteng, Pretoria)
(21970/2021) [2025] ZAGPPHC 202 (12 March 2025)
FLYNOTES: CONSTITUTION – Citizenship – Child born in country – Born after change in law – Application to recognize child as a South African citizen refused – Has no citizenship or nationality – Constitutionally directed that child is to have a nationality from birth – Birth was registered in accordance with provisions – Department’s refusal decision declared unlawful and set aside – Child declared a South African citizen by birth – South African Citizenship Act 88 of 1995, s 2(2).
JUDGEMENT (MILLAR J)
[1] It is a foundational pillar of our law that “every child has the right to a name and nationality from birth”[1] and to “family care or parental care” [2] and overarchingly, “a child’s best interests are of paramount importance in every matter concerning the child”[3] The present application finds its genesis in the efforts on the part of the first and second applicants (the Applicants), the parents of a minor child, to obtain for that child, a legal status within the Republic of greater certainty than their own.
[2] The Applicants are legally recognised refugees from Rwanda.[4] The First and Second Applicants were married to each other in Johannesburg on 7 April 2011. They have made their life in South Africa.
[3] The Applicants have both lived in the Republic for many years. During their married life here, two children were born. Their eldest daughter, in consequence of the law as it stood at the time of her birth and because she was born within the Republic, was automatically granted South African citizenship. Their youngest daughter, to whom the present application relates, and who was born after a change in the law, finds herself in a different position. She does not automatically qualify for citizenship in South Africa in consequence of the change in the law.
[4] The Applicants applied to the First Respondent to have their youngest child recognised as a South African citizen. The First Respondent for its part, refused the application inter alia on the basis that if it were to grant the application, it would be acting ultra vires the Citizenship Act[5].
[…]
[42] In the circumstances, it is ordered:
[42.1] The late filing of this application is condoned.
[42.2] The decision of the First Respondent not to register the minor child A[…] H[…] U[…] E[…] born on 2[…] M[…] 2015 as a citizen of the Republic of South Africa, is declared unlawful and is hereby reviewed and set aside.
[42.3] A[…] H[…] U[…] E[…] born on 2[…] M[…] 2015 is declared to be a South African citizen by birth in terms of section 2(2) of the South African Citizenship Act, 88 of 1995 as amended.
[42.4] The Respondents are hereby directed to do all things necessary to register A[…] H[…] U[…] E[…] born on 2[…] M[…] 2015 as a citizen of the Republic of South Africa in terms of section 2(2) of the Citizenship Act, 88 of 1995 as amended which includes but is not limited to the following:
[42.4.1] Entering A[…] H[…] U[…] E[…] born on 2[…] M[…] 2015 into the National Population Register as a citizen.
[42.4.2] Issuing A[…] H[…] U[…] E[…] born on 2[…] M[…] 2015 with a citizen identity number; and
[42.4.3] Amending and re-issuing A[…] H[…] U[…] E[…] born on 2[…] M[…] 2015 with a birth certificate to reflect the aforesaid.
[42.5] The Respondents are hereby ordered to comply with this order within three (3) months from date of service of this order by the Sheriff of the Court upon them.
[42.6] The Respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.
Read full judgment on SAFLII: https://www.saflii.org/za/cases/ZAGPPHC/2025/202.html