The Western Cape High Court has taken a decision about citizenship in South Africa.
The Legal Resources Centre represented six applicants in their case, Miriam Ali vs The Minister of Home Affairs (case 15566/2016), which looked at the applicability of a clause pertaining to children born in South Africa to foreign parents.
The Citizenship Act of South Africa was amended in 2010, which came into operation on 1 January 2013. Section 4(3) of the amended Act stated that:
A child born in the Republic of parents who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if-
(a) he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and
(b) his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992.
The applicants represented in Legal Resource Centre’s case were born in South Africa and had reached eighteen years after 1st January 2013.
However, when they approached the Department of Home Affairs to apply for South African citizenship, they were informed that this section of the Citizenship Act does not apply retrospectively – meaning that only those who are born in South Africa and turn eighteen in 2031 would be able to apply for South African citizenship.
The matter was heard by Acting Judge Willie in the Western Cape High Court on 24 August 2017.
The judgement, released today, orders that Home Affairs declare that Section
4(3) of the citizenship act is applicable to persons who meet the requirements ‘irrespective of whether they were born before or after 1 January 2013’, and requests that Home Affairs develop regulations to the Citizenship Act within a year, and accept applications.
Judge Willie found that the prejudice to the applicants who cannot apply for citizenship involves ‘not only practical implications but also fundamental constitutional entitlements.’
Read the judgement here.