Gauteng High Court orders Home Affairs to grant nationality, and make regulations to avoid statelessness

Tebogo was born in South Africa and has lived in the country his whole life. He has never left South Africa. His birth was never registered by his parents as his mother died when he was only 6 years old and his father abandoned him. He was raised in a Child and Youth Care Centre (CYCC) in Limpopo from the age of 9. When he was 16 years old, the social workers at the CYCC initiated a process to get Tebogo registered, but what should have been a simple and quick administrative process turned into a 10-year struggle for identity and belonging and ultimately recognition and dignity afforded to Tebogo  as a fellow human being. Tebogo discovered he was stateless when DHA refused to register his birth and the Kingdom of Eswatini (his parents’ supposed country of origin) denied that he was a Swati citizen.

Lack of birth registration (or a birth certificate) is one of the main causes of statelessness in Southern Africa because a birth certificate is the first legal identity issued to a child and that provides the child with proof of two critical facts relevant to establishing their nationality: place of birth and parentage. Lack of birth registration (compounded by other factors) is what resulted in , Tebogo Khoza, becoming stateless and living as an “invisible” person throughout his childhood and into adulthood.

Tebogo has been trying to register his birth and to secure a nationality for 10 years, in the face of a continued and obstinate refusal by the DHA to assist him.

DHA has imposed onerous and arbitrary requirements for birth registration that leave many vulnerable people undocumented and at risk of statelessness. DHA has also refused or failed to draft regulations to facilitate the effective implementation of existing legal safeguards against statelessness especially as this impacts disproportionally on children. The court further noted that there is no basis in law for the DHA to demand such an arduous processes.

The court concluded that the DHA had shown itself to be “inflexible” and “oppositional” in its refusal to assist Tebogo, notwithstanding his own efforts to comply with the DHA’s requirements and to provide all the relevant information at his disposal.

“The Department’s mandate is not to pose as a barrier to recognition of citizenship especially not with frivolous and contrived disputes”.

For the first time in South African law, the judgment provides clarity on the burden and standard of proof to be applied in statelessness cases. The court adopted the UNHCR’s recommendation that the burden of proof in statelessness determination should be shared between the applicant and the decision-maker and that a low standard of proof – ‘to a reasonable degree’ – should be applied in determining if a person is stateless

“I am so excited about the judgment, I never thought it will happen for me or let alone that it was possible for me to have an ID document as this battle has been going on for years,” said Tebogo Khoza.

This judgment is meaningful to Tebogo, and to all children living in statelessness or at risk of statelessness in South Africa. No child deserves to suffer the indignity of being “invisible”.

LHR urges the DHA to ensure swift implementation of this judgment by processing Tebogo’s birth registration and promulgating the regulations to the Citizenship Act.

Read press release on LHR website: https://www.lhr.org.za/lhr-news/press-statement-gauteng-high-court-orders-home-affairs-to-grant-nationality-and-make-regulations-to-avoid-statelessness/