The right to life and identity are fundamental human rights. Citizenship in South Africa has been a contentious issue, historically used to define access to the South African polity. This article explores international conventions and domestic laws regarding a child’s right to birth registration and citizenship in South Africa, particularly for children of foreign or undocumented parents. It examines the Citizenship Act, its amendments, and relevant court decisions, including those from the Constitutional Court. The article also discusses statelessness and its implications, concluding with the Chidimma Vanessa Adetshina case study and legal perspectives on the matter.
International Law Position On A Child’s Right to Birth Registration
International law strongly supports a child’s right to birth registration and nationality. Key documents include the Universal Declaration of Human Rights, the UN Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the African Charter on the Rights and Welfare of the Child.
South Africa’s Constitution emphasizes international law’s role in interpreting legislation and the Bill of Rights. Sections 232, 233, and 39 highlight the importance of international law in South African legal interpretation.
South African courts have committed to promoting rights through visionary interpretations and applying international charters. South Africa is a signatory to most international conventions, including the Universal Declaration of Human Rights and the Convention on the Reduction of Statelessness.
South Africa ratified the Convention on the Rights of the Child on June 16, 1995, and is committed to the Universal Declaration of Human Rights. These international conventions form the basis of post-apartheid South Africa’s constitutional principles.
As a signatory, South Africa must implement these charters’ principles, protect children’s rights, and reduce statelessness. Customary international law applies in South Africa unless it conflicts with the Constitution or an Act of Parliament.
Citizenship is determined by national laws, with international laws invoked if domestic laws don’t align with ratified principles. South African citizenship can be acquired through birth, descent, or naturalization.
The Constitution guarantees every child’s right to a name and nationality from birth, aligning with human dignity and preventing statelessness.
Concerning the Child
These provisions guide Parliament when enacting laws affecting children, subject to constitutional limitations.
Section 232 of the Constitution
The Children’s Act 38 of 2005 upholds children’s rights. Section 9 emphasizes the child’s best interests. The High Court is the upper guardian of minors, protecting their rights.
The Acquisition of Citizenship in South Africa
History of South African Citizenship Legislation
South African citizenship can be acquired through birth, descent, or naturalization. Citizenship by birth is based on birthplace, descent on parentage, and naturalization on meeting requirements. The distinction between birth and descent can be complex, necessitating historical context.
Citizenship Act of 1949
The 1949 Act allowed citizenship by birth for two groups:
The 1949 Citizenship Act allowed citizenship by descent for two groups:
- Those born outside South Africa before the Act to a British subject father born in South Africa.
- Those born outside South Africa after the Act to a South African citizen or resident father, with birth registered within a year.
The Act outlined paths for citizenship by birth and descent, initially considering parental marital status. A 1991 amendment removed this consideration.
The Restoration Act of 1993 reinstated citizenship for TBVC state citizens from January 1, 1994, rectifying apartheid-era injustices. It aimed to bring all South Africans under the 1949 Act’s provisions.
The 1995 Citizenship Act followed the interim Constitution, overhauling the citizenship regime.
Under the 1995 Citizenship Act, citizenship by birth was acquired in several ways:
- Those who were citizens by birth before the Act remained so.
- Those born in South Africa after the Act’s commencement, unless a parent was a foreign diplomat or not a lawful permanent resident.
- Certain individuals were born abroad to parents in government service.
- Those born in South Africa and adopted by a South African citizen.
- Those born in South Africa without other citizenship, if their birth was registered.
The 2010 Citizenship Amendment Act further updated these provisions:
- Anyone who was a citizen by birth before the Act remained so.
- Those born to a South African parent, in or outside South Africa, became citizens by birth.
- Those born in South Africa without other citizenship, if registered, became citizens by birth.
Citizenship by Birth
Non-South African citizens can qualify for citizenship by birth if they:
(a) Lived in South Africa from birth to adulthood
(b) Registered their birth according to the Births and Deaths Registration Act, 1992
Citizenship by Naturalisation (Citizenship Amendment Act 17 of 2010)
- South African citizens by naturalisation include:
(a) Those who were citizens before the 2010 Act
(b) Those granted naturalisation certificates under section 5 - Citizenship starts from the certificate’s issue date
- Children born in South Africa to non-citizen parents can apply for citizenship upon becoming adults if they:
(a) Lived in South Africa from birth to adulthood
(b) Registered their birth as per the 1992 Act
While South Africa has laws aligned with international obligations, implementation remains an issue.
Births and Deaths Registration Act
The court declared Tebogo a South African citizen and ordered the DHA to accept citizenship applications for stateless children based on affidavits. It also found the DHA in contempt for not implementing previous court orders.
This ruling benefits all stateless children in South Africa, emphasizing that no child should be “invisible.”
In another case, Miriam Ali and Others v. The Minister of Home Affairs and Others, the court addressed Section 4(3) of the Citizenship Amendment Act 17 of 2010. Despite this provision, the DHA refused to create regulations for eligible individuals to apply for citizenship.
The Supreme Court of Appeal ruled in favour of foreign-born children, rejecting the DHA’s limited interpretation of the law.
Minister of Home Affairs v Ali (1289/17) 2018 ZASCA 169
The Supreme Court of Appeal (SCA) upheld the Western Cape High Court’s order for the Department of Home Affairs (DHA) to accept citizenship applications under section 4(3) of the Act. The court ruled this didn’t violate separation of powers, as it was within the Minister’s authority to provide application procedures.
The SCA dismissed the appeal and ordered the Minister to regulate naturalisation applications under section 4(3). The DHA must accept applications pending these regulations.
Concluding Remarks
Recent court rulings confirm that children born to foreign and undocumented parents in South Africa can acquire citizenship under current laws. The 1995 Citizenship Act and 2010 Amendment Act provide avenues to prevent statelessness, including Section 4(3) for children born to non-permanent residents.
The government has failed to implement regulations for children of foreign parents despite court orders. Reform is needed. We are hopeful that the Department of Home Affairs, led by Dr Leon Schreiber, will honour and uphold judicial decisions and the principles of law.
To read the full document on “Citizenship Rights For Children of Foreign Parents In South Africa– Chidimma Vanessa Adetshina Case Study, click here.
About The Author: Attorney Nwobi I. Smart (Esq)
Mr Nwobi holds an LLB from UNISA and an LLM in Socio-Economic Rights from UP. He completed law school at LEAD-UNISA and is pursuing a doctorate at UP. After serving his Articles of Clerkship with Ogboro Attorneys, he was admitted as an attorney of the High Court in South Africa. Nwobi (Smart) Attorneys, established in 2017, benefits from Mr Nwobi’s expertise and diverse background. He excels in managing the firm and brings a dynamic approach to his work.
Beyond his legal practice, Mr Nwobi founded Dream Finders Varsity Consultancy, offering coaching to law students and leadership training across Africa. For more information about Dream Finders, visit their website.