Amendments to the Citizenship Act came under the judicial spotlight after one child born from parents who are legally in the country as refugees after they had fled Rwanda is a citizen of South Africa, while her younger sister, born after amendments, is left stateless.
The youngest child, born in 2015 after a change in the law, does not automatically qualify for citizenship as her elder sister did. In terms of the new law, she can only apply for citizenship here - with no guarantees that she will receive it - after she has turned 18.
Her parents, who have been living in South Africa now for several years, turned to the Gauteng High Court, Pretoria out of desperation as their youngest child has now been left stateless. Home Affairs, which has followed the letter of the law, refused to grant her citizenship.
Judge Anthony Millar, in the opening of his judgment in which he ruled in favour of the parents, remarked that “it is a foundational pillar of our law that every child has the right to a name and nationality from birth".
Prior to January 1, 2013, when the applicant's eldest child was born; in terms of the Citizenship Act, a person born here was a South African citizen by birth if one of the parents were legally here.
Since both parents are refugees here and not citizens, the youngest child finds herself in a situation where she is without South African citizenship conferred on her automatically and to obtain citizenship upon application, would have to wait until she was a major (18) to do so.
Judge Millar questioned that while the status of the parents is that of refugees, and of their eldest child is that of a citizen of the Republic, what then is to become of the youngest child since she does not automatically qualify for South African citizenship, nor that of Rwanda.
Home affairs suggested that she applied for Rwandan citizenship or simply waited until she turned 18 to apply for South African citizenship.
But the judge pointed out that as refugees from Rwanda, the parents can hardly ask that country to grant their daughter citizenship. The choice is an impossible one for the parents, the judge remarked.
He added that because of the change to the Citizenship Act, she is not a citizen in the country of her birth. Only after she turns 18 will she have to apply to be recognised as a refugee in her own name and only thereafter, if her application is granted, will she be able to apply for citizenship of South Africa by way of naturalisation.
“This proposed course of action will only give her a right to apply, and not a vested right as guaranteed by the Constitution. This only serves to perpetuate her current predicament, and she would still have no nationality and remain stateless.”
Judge Millar said in cases such as the present one, “it must not be forgotten that procedure is, but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities".
“It is constitutionally directed that a child is to have a nationality from birth, and it follows axiomatically that it is in the best interests of the child that this is so. In the circumstances, the child is to be declared a citizen of the Republic of South Africa,” Judge Millar said.
He ordered Home Affairs to, within three months, register the child accordingly.