A new court case has highlighted a new angle on South African citizenship and puts to rest some misconceptions that anyone born in the republic automatically becomes a citizen by right.

As highlighted by legal experts at Cliffe Dekker Hofmeyr (CDH), the case involved children born in South Africa to two Zimbabwean parents between 2010 and 2016.

Because the parents were not permanent residents – and had not renounced their Zimbabwean citizenship – their children inherited their nationality and were not automatically granted South African citizenship, the court found.

However, it highlighted that paths do exist to get citizenship – but it would take time.

The case

The case involved two Zimbabwean parents residing in South Africa – allegedly on a work and visitors visa – who were the parents of three minor children born in the republic between 2010 and 2016.

The parents were not permanent residents.

According to CDH, upon birth, the parents applied for their children to be issued with birth certificates for South African citizens on the basis that they were born in South Africa, and they did not have Zimbabwean citizenship or nationality.

Notwithstanding their application, their children could only be issued with unabridged birth certificates for non-citizenship. This would allow their children to return to Zimbabwe for them to be issued with Zimbabwean birth certificates.

Unsatisfied with this decision, the applicants instituted a review application in terms of the Promotion of Administrative Justice Act 3 of 2000, to set aside the Minister’s decision not to issue their children with South African birth certificates, and consequently not conferring them with South African citizenship.

The parents’ challenge was primarily based on their children being born in South Africa. They argued that their application gave rise to constitutional issues in relation to the right to fair administrative action, which is enshrined in section 33 of the Constitution of the Republic of South Africa.

The High Court was accordingly required to determine:

• Whether citizenship could be granted to children of persons who were neither South African permanent residents nor citizens;
• Whether the applicants’ minor children qualified for South African citizenship by birth in terms of section 2(2) of the Citizenship Act; and
• Whether the legal status of a parent’s admission into South Africa could determine the citizenship of their child under section 2(2) of the Citizenship Act.

Section 2(2) of the Citizenship Act provides that “Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (1) shall be a South African citizen by birth if – (a) he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and (b) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act 1992”.

In expanding on section 2(2) of the Citizenship Act, the court confirmed that citizenship in South African is either obtained by birth, descent, or naturalization, and that the basic principle of South African citizenship is that a child follows the citizenship or nationality of his or her parents.

“The court considered and emphasised that the best interests of the applicants’ minor children are of paramount importance and that it would not be in their interests to be separated from their parents,” CDH said.

“The court accordingly held that the applicants’ children had Zimbabwean citizenship by virtue of them being Zimbabwean citizens, who had not renounced their Zimbabwean citizenship.”

This principle is founded on the basis that children inherit the status of their parents to avoid separating them from their parents. As such, the mere fact that the children were born in South Africa did not mean that they had abandoned their parent’s country of citizenship or nationality.

Interestingly, the court held that in such a case, the parents’ desire for their children to be regarded as South African citizens would be akin to an inter-country adoption for the purposes of the Hague Convention on International Country Adoption.

This point was founded on the fact that the applicants would retain their Zimbabwean citizenship while conferring South African citizenship on their children, and as such, the applicants would have parental rights and responsibilities towards children of a different country.

The court did, however,r offer alternative recourse to the applicants in that nothing prohibited their children from obtaining South African citizenship by birth in terms of section 3 of the Citizenship Act if they met the applicable requirements.

This section provides that:

• The parents of Non-South African citizens would have to be permanent residents in South Africa; and
• Their children would have to reside in South Africa from the date of their birth to the date of attaining majority, in order to obtain citizenship by birth.

“The most important takeaway from this judgment is the weight placed on the best interests of children, and that it cannot be said to be in their interests to be separated from their parents, notwithstanding the place of their birth,” CDH said.

“Parents who find themselves in similar circumstances are reminded that whilst their children would not automatically attain South African citizenship by being born in South Africa, they are not precluded from doing so at a later stage if they follow the correct procedure in terms of section 3 of the Citizenship Act.”

Commentary by Hedda Schensema, Director; Taryn York, Associate; and Thato Makoaba Candidate Attorney at Cliffe Dekker Hofmeyr.

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