By Christine Hobden (University of Fort Hare), GLOBALCIT collaborator.
In June 2019, a South African Non-Profit Organisation, Lawyers for Human Rights, applied to the South African Constitutional Court for confirmation of a High Court order declaring unconstitutional the provisions of the South African Citizenship Act 88 of 1995 that effectively stripped individuals born outside of the country, to South African nationals, of their citizenship by descent. The case was heard in February 2020 and judgment is reserved.
This case has highlighted a number of ongoing issues with South African citizenship practice. Perhaps the most evident is lack of capacity of the Department of Home Affairs in legal matters; in this case, and others, the department was responsible for the extensive delay in finalising the litigation. The Department admits to being overwhelmed by the sheer volume of cases instituted against it. There are between 8000 and 10,000 pending cases across the country. More importantly, this case provides a useful glimpse into the Department’s narrow interpretation of citizenship legislation and justification for its actions.
The case at hand
On the 5th June 2019, the Gauteng Division of the High Court declared sections 2(1)(a) and 2(1)(b) of the South African Citizenship Act 88 of 1995 unconstitutional and invalid. These sections deal with citizenship by birth, and following the 2010 amendment also include most cases historically known as citizenship by descent. The Department of Home Affairs did not file answering papers, or appear at court for the hearing. This significant and far-reaching order was granted unopposed and without the benefit of any evidence or legal argument from the Department. In addition to the constitutional relief, the court also ordered the consequential relief that the applicants be declared citizens and ordered the Department to facilitate the paperwork required to establish this status. Lawyers for Human Rights applied to the Constitutional Court to confirm the High Court’s declarations of invalidity and the remedy of ‘reading in’ to the legislation. The consequential relief, namely that the court declared the applicants to be citizens, is not currently under appeal nor a part of the current case before the Constitutional Court.
The applicants in this case were all born outside of South Africa to one South African parent before 2013. Under the 1995 South African Citizenship Act (SACA) they would acquire citizenship by descent once their birth was registered under the Births and Deaths Registration Act of 1992 (BDRA). The applicants (and their parents) failed to register their births. They therefore did not acquire citizenship. The applicants argued that the BDRA allows for late registration of birth and as such, they held a ‘vested right’ to citizenship. Up until the new amendment came into force in 2013, they could at any time enforce that right by registering their birth. The 2010 Amendment thus removed their vested right to citizenship by hollowing out the category of ‘citizenship by descent’ but failing to back reference those who had previously had the right to citizenship in this category in the new category, ‘citizenship by birth’, into which they now fall.
Under the new amendment, the category of citizenship by descent only refers to adopted children. In its place is a revised section on citizenship by birth, that reads as follows, with contested aspects in bold:
2 Citizenship by birth (1) Any person-
(a) who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010 [1 January 2013], was a South African citizen by birth; or
(b) who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth.”
The applicants argue that this amended section 2 is unconstitutional on the grounds that 2(1)(a) only refers to citizens by birth and not also those who were, under the previous legislation, citizens by descent. They further note that 2(1)(b) is written in the present tense of ‘is born’ and so arbitrarily precludes anyone who “was born” before 2013 from acquiring citizenship through their parents.
The applicants suggest that this gap in provision is the result of an oversight, stemming from the change in the meaning of citizenship by birth and citizenship by descent. They thus asked, and were granted, a reading in to the legislation that adds ‘or by descent’ to 2(1)a and ‘or was’ to 2(1)(b). The applicants also note that, the legislation, as amended, no longer holds that registration of birth is required to be a South African citizen by birth. The Regulations do require this, but since it was in the legislation, and intentionally removed, it is arguable that the regulations are overstepping (as I argue that they have in other cases) in maintaining this requirement. The applicants argue that this provision should apply retrospectively so that there is no arbitrary distinction between those born before and those born after 2013. If the four applicants had been born after 2013 they would automatically be citizens under the new legislation, but as it stands the Department of Home Affairs claims they have no grounds to apply for citizenship.
The applicants are thus bizarrely currently unable to access South African citizenship despite the fact that under previous legislation they had a vested right to acquire it, and if born under the current legislation they would automatically acquire it. By virtue of failing to take up their citizenship before the legislative amendment came into force, they are precluded from their right to citizenship. The applicants, through Lawyers for Human Rights, argue that this is an unjust retraction of an existing right to citizenship.
The Department’s Response
The Department of Home Affairs did not participate in the matter until the application for confirmation of the High Court order reached the Constitutional Court. The Department now argues that the matter should be remitted to the High Court to afford it the opportunity to adduce evidence and contest the facts put up by the applicants. In the alternative, the Department defends the constitutionality of the legislation through legal argument, and in some cases, reliance on new facts. They are not permitted, however, to advance any new evidence at this stage of the proceedings. Nevertheless, the heads of argument give clear insight into the Department’s position on the merits of the matter, and it clearly coheres with a worrying trend in South African citizenship practice to reduce access based on unsubstantiated arguments around security and fraud with little engagement with the spirit of legislation and the nature of the rights it aims to protect.
In the current proceedings, the Department denies the charge of an oversight, arguing that these provisions were intentionally put in place to prevent the ‘children of foreigners’ from claiming citizenship, and opening of the floodgates of applications from those wishing to enjoy the benefits of being South African.There is a striking prevalence of fraud and security related phrases such as ‘uncontrolled citizenship’, the ‘mischief’ of false applications, ‘floodgates of potential fraudulent citizenship and abuse of the citizenship system’, and a risk of the uncontrolled citizenship engendering a ‘state of lawlessness’. Consistent with this over-arching theme, the Department disputes the truthfulness of the applicants’ explanation of the circumstances of their birth.
The Department argues that any limitation on the right to citizenship is justified (in terms of section 36 of the South African Constitution) through its purpose ‘ultimately to curb potential fraudulent citizenship and to protect the interests of the country’. The Department attempts to substantiate this argument with information detailing high numbers of refugees, immigrants, and South Africans dependant on the state, and South Africa’s limited resources to provide for all those who seek assistance. On their view, the limitation is not severe because the applicants ‘are not stateless persons. The have their countries of origin where they were born and lived’. Further, they have the opportunity to pursue South African citizenship through the naturalisation process.
Trends in citizenship practice
The arguments presented by the Department of Home Affairs while problematic, are not surprising. They follow a familiar tune of using security and fraud concerns as a justification for limiting access to South Africa and its citizenship. This is most strikingly evident in the recent amendment to the Refugee Act, but is also present, as I have argued, in a number of other attempts to reduce access to South African citizenship. Those who work on the ground with refugees and those seeking citizenship have argued that concerns around fraud and security are overstated, and, that effective implementation of existing policy would be by far the best remedy to these concerns.
The South African Department of Home Affairs has also, in practice, shown a disregard for the plight of stateless persons. While legislation makes provision for citizenship for those born in South Africa without access to another citizenship, the Department has dragged its feet at every turn in making this practically possible. In this case, one report suggests that the applicants are currently stateless, but accessible court documents do not provide conclusive evidence either way. In each case they had one South African parent so, if their other parent was a citizen of the country of their birth (Zimbabwe, Ghana, or Malawi), they would have entitlement to that citizenship. If not, and their second parent was of another nationality, unknown or not present, they would be without entitlement to any citizenship. Tellingly, the Department declares them as ‘not stateless persons’ but does not produce evidence that they have another citizenship, but rather alludes to, but does not substantiate, another entitlement given they had been ‘born and lived’ in another country.
Finally, it is interesting to note the recurring theme of retrospective application in South African citizenship practice. Here, the question is whether the new legislation, which does not require registration of births, ought to be applied retrospectively to the applicants thus making them automatic citizens regardless of their failure to register their births. A similar issue has arisen around section 4(3) of the SACA, which following the enactment of the 2010 Amendment in 2013, permitted children born of non-permanent residents to apply for citizenship upon reaching majority if they have lived in South Africa from birth. The Department tried to argue that this applied only to children born after 2013 rather than children who turned eighteen years old after 2013. In a case brought before the High Court, the Department defended their position on the grounds that the applicants are not unduly prejudiced given they could apply for refugee status or permanent residence. The Court held that this approach ‘effectively ring-fenced the applicants as non-citizens in a country that they have lived in since birth’ and deemed them as second class citizens. Since in both these cases, retrospective application would best respect their vested rights to citizenship and avoid arbitrary distinctions between persons, courts have deemed this retrospective application appropriate. The Department has continued to resist this interpretation, yet, as Judge AJ Willie held, the Department’s ‘convenient interpretation takes no account of the duty to interpret statutes in a manner that promotes the spirit, purport and object of our “Bill of Rights” as is required by section 39(2) of our Constitution’.
You can access the documents before the Constitutional Court here.