For many foreign nationals working their way through South Africa's immigration processes, the ultimate destination is citizenship by naturalisation. The South African Citizenship Act 88 of 1995 (the Act) provides two pathways to that destination. The first, under section 5(1), rests on the passage of time on permanent residence: the applicant must have been ordinarily resident in the Republic for five years immediately preceding the application. The second, under section 4(3), rests on the passage of time from birth to majority. A child born in South Africa to parents who are neither South African citizens nor permanent residents qualifies to apply for citizenship upon becoming a major, provided that he or she has lived in the Republic from birth to majority and that the birth was registered in terms of the Births and Deaths Registration Act 51 of 1992.
Naturalisation under section 5(1) is comparatively uncontroversial, with a reasonably clear process to follow. The position of children born in South Africa who have now reached the age of majority is far more complicated. Section 4(3) has been in force since 1 January 2013, yet for more than a decade there was no workable process through which to apply. When regulations finally arrived, they imposed conditions that the Act itself does not.
The human cost is considerable. These applicants typically reach 18 at a critical formative stage, having completed matric and looking to further their studies or enter the workforce. Their immigration position, however, is usually derived from that of their parents, many of whom hold lapsed asylum seeker visas, expired permits or no status at all. Without citizenship, enrolment at tertiary institutions, access to funding, formal employment and even a bank account become difficult or impossible, in the only country these young people have ever known.
A problem of the Department's own making
The difficulty is largely self-created by the Department of Home Affairs. From 2013, the Department took the view that section 4(3) applied only to children born on or after 1 January 2013, which would have meant that no person could apply under it before 1 January 2031. On that interpretation, the Department also saw no need to prescribe the forms and regulations required by section 23 of the Act, and applicants were simply turned away.
That position was rejected by the Supreme Court of Appeal in Minister of Home Affairs v Ali and Others [2018] ZASCA 169 (30 November 2018).
The Ali judgment
The respondents in Ali were young adults born in South Africa between 1996 and 1998 to parents of Somali, Ethiopian, Sudanese, Angolan and Congolese nationality. Their births had been registered, they had lived in South Africa all their lives, and several had never left the country. Some had no meaningful connection with their parents' countries of origin at all; one had never visited Angola and did not speak Portuguese. Each had been turned away by the Department on several occasions.
The Western Cape High Court (Wille AJ) declared that section 4(3) applies irrespective of whether the applicant was born before or after 1 January 2013, ordered the Department to accept the applicants' applications on affidavit and decide them within ten days, and directed that the necessary forms be put in place within a year. The Minister appealed.
The appeal was dismissed with costs, in a unanimous judgment written by Mathopo JA. The key findings were these:
- The Minister's case collapsed on appeal. Counsel for the Minister conceded that the respondents met every requirement of section 4(3), that the retrospectivity argument was unsound, and that section 4(3) is a self-standing provision that need not be read with section 5 of the Act.
- No retrospectivity. Relying on Nkabinde v Judicial Service Commission, the court held that section 4(3) takes away no vested rights and imposes no new obligations in respect of past transactions. It simply gives qualifying persons the right to apply on reaching majority.
- Unfair discrimination. There is no rational purpose in distinguishing between children born before and after 1 January 2013. The Minister's interpretation was unfairly discriminatory and failed to promote the spirit, purport and objects of the Bill of Rights.
- No exhaustion defence. The argument, raised for the first time on appeal, that the respondents should first have used the internal remedy in section 25 of the Act was described as untenable. There was no decision to review, because the respondents had never been permitted to apply.
- Remedy and separation of powers. The court was critical of the Minister's "supine attitude". Ordering the Department to accept applications on affidavit was a just and equitable remedy that left the content of the regulations to the Minister, and so did not offend the separation of powers.
- Refugee status is no substitute. Refugee status presupposes a true home elsewhere and confers no right to vote. The court considered it an affront to deny the respondents the right to apply for citizenship in the only country they have ever known.
The SCA ordered the Minister, within one year (that is, by 30 November 2019), to make regulations under section 23(a) of the Act for applications under section 4(3), and, pending those regulations, to accept section 4(3) applications on affidavit.
The regulations: years late, withdrawn and replaced
The one year deadline passed without regulations. Draft regulations were published for comment in July 2020 and were widely criticised for going beyond what the Act permits.
Amendment Regulations were eventually published on 12 June 2023 under Notice No. 3535 in Government Gazette No. 48777. Less than four weeks later, on 7 July 2023, the then Minister of Home Affairs, Dr Aaron Motsoaledi, withdrew them by Notice No. R. 3657 in Government Gazette No. 48924. The withdrawal notice gave no reasons and said only that updated regulations would be published in due course.
In the same Gazette, however, the Minister published Notice No. R. 3658, the First Amendment of the Regulations on the South African Citizenship Act, 1995, which came into operation on the date of publication. Asked in Parliament in November 2023 why the June regulations had been withdrawn, the Minister replied only that they had been replaced by the regulations gazetted on 7 July 2023, which he described as final, and reported 71 section 4(3) applications then pending.
The regulations giving effect to section 4(3) therefore came into force on 7 July 2023: more than ten years after the section commenced, and more than three and a half years after the deadline set by the SCA.
This has an important practical consequence. The SCA's affidavit procedure was expressly an interim measure, operative only pending the promulgation of regulations. With regulation 3A now in force, applications are to be made on the prescribed form rather than by affidavit, unless and until the regulations, or parts of them, are set aside.
What regulation 3A requires
Regulation 3A requires an application on form DHA-63A, supported by an extensive set of documents. These differ depending on whether the applicant was born to asylum seekers or refugees, or to foreign nationals holding temporary residence visas, but broadly include:
- the original DHA-19 form issued on registration of the birth;
- proof of birth from the health facility or, failing that, a sworn affidavit by the mother supported by affidavits of persons present at the birth;
- the parents' original asylum seeker visas, refugee status documents or section 10(2) temporary residence visas, together with their identity or travel documents;
- the applicant's own asylum seeker visa, refugee status or temporary residence visa, and passport or travel document;
- a Grade 1 school report or a letter from the primary school principal with an extract of the school register;
- proof of residence in the Republic from birth to the date of application;
- proof of ability to communicate in one of the official languages; and
- the applicant's biometrics.
A successful applicant must sign a declaration of allegiance (DHA-75) before the certificate of naturalisation (DHA-64E) is issued. The form itself warns that an application may take 12 months to finalise.
Where the regulations depart from the Act and from Ali
An additional requirement the Act does not contain. Regulation 3A(2)(c) limits applications to persons who "have no citizenship, residency or connection, in any manner whatsoever, of any other country". Section 4(3) contains two requirements only: residence from birth to majority and registration of the birth. Many children born here to foreign parents acquire their parents' nationality by descent automatically, whether or not they have ever set foot in that country. Read literally, the regulation would exclude them. Subordinate legislation cannot add qualifying conditions that Parliament did not enact, and this requirement is difficult to reconcile with the concession, accepted by the SCA, that section 4(3) is self-standing and must not be read with section 5.
Section 5 concepts imported into section 4(3). The DHA-63A form states that applicants must have spent five years of continuous ordinary residence in the Republic at the time of application. That is a section 5(1) concept. Under section 4(3) the relevant residence is from birth to majority.
Parent-dependent documentation. The Act is concerned with the child's birth and residence, not with the parents' status. The documentary list, however, leans heavily on the parents' original permits, visas and travel documents, and on the applicant holding a visa or asylum document of his or her own. In practice, the very group section 4(3) was designed to protect is the group least likely to hold those documents.
Hearings without legal representation. Regulation 3B allows the Minister or a delegated official to require an applicant to attend a hearing, the procedure for which the Minister alone determines and at which the applicant has no right to legal representation. For young applicants facing a decision of this magnitude, the provision raises obvious procedural fairness concerns.
Drafting quality. Regulation 3A(2) as published moves from paragraph (a) to paragraph (c), with no paragraph (b). The omission is small, but it speaks to the care with which these regulations were finalised after a delay of this length.
Practical guidance for applicants
- Secure the birth record. Locate the original DHA-19 and the hospital or clinic proof of birth. Where these are lost, begin assembling the supporting affidavits now.
- Build the residence record. Obtain the Grade 1 report or a principal's letter with the register extract, and gather school, medical and other records showing continuous residence from birth.
- Address the parents' documents. Collect whatever immigration documents the parents hold, current or expired, and their passports where available.
- Do not accept an improper refusal. A refusal based on a requirement that section 4(3) does not impose should be challenged, ordinarily through section 25 of the Act first; where the obstacle is the regulation itself, a review of the regulation may be the appropriate route.
- Keep proof of submission. Record every visit, obtain proof of lodgement and keep copies of everything submitted.
Section 4(3) was intended to give children who are South African in every respect but their papers a straightforward route to citizenship. Instead, they have faced a decade of misinterpretation, a court order complied with years late, a set of regulations withdrawn without explanation, and a replacement instrument that narrows the right Parliament created. The SCA described the treatment of the Ali respondents as something that "cannot be countenanced". Until regulation 3A is brought into line with the Act, the same may be said of the position facing the next generation of applicants.