Court rules on stateless children

The Mercury | 10 Jan 2023

As long as we live in a world that is territorially organised into national states, a stateless person is not simply expelled from one country; they are expelled from humanity

CHILDREN born to foreign nationals and raised in South Africa are South Africans, the Supreme Court of Appeal has said.

In the ground-breaking judgment, the court quoted political theorist and philosopher Hannah Arendt in the opening to the judgment, saying “citizenship is more fundamental than civil rights”.

It said the issue was not simply a question of statelessness, but of common humanity and the responsibility people had towards one another as human beings who shared the world in common.

“As long as we live in a world that is territorially organised into national states, a stateless person is not simply expelled from one country; they are expelled from humanity,” five judges said in the ruling.

The high court in Pretoria earlier ordered Home Affairs to grant the Jose brothers, born from Angolan parents, South African citizenship.

The department, however, appealed the ruling on the grounds that the brothers did not prove that they had the right to South African citizenship.

Although the brothers were born and raised here, Home Affairs insisted that they had to go back to Angola from where their parents hailed, although they had never set foot in that country. The Citizenship Act provides that a child born here 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 (18).

This is provided that the child lived in South Africa from the date of birth to the date of becoming a major. Another prerequisite is that the child’s birth had to be registered in accordance with the provisions of the Births and Deaths Registration Act.

The parents of the brothers fled Angola in 1995 and sought asylum in South Africa. Joseph Jose Diabaka was born in February, 1996, and his brother Jonathan Diabaka “Junior” in August the following year.

Both, who were born in Coronation Hospital in Joburg (now the Rahima Moosa Mother and Child Hospital), have lived in South Africa their entire lives.

JUDGES’ RULING

The brothers each received a birth certificate at the time their births were registered. They, together with their parents, were also granted refugee status in 1997.

That endured until January, 2014, when they were informed by the Standing Committee for Refugee Affairs that pursuant to a repatriation process initiated by the South African government their refugee status had been withdrawn. Joseph was then 17 and Junior 16.

Both were then learners at Barnato Park High School. They were informed by the department that their refugee permits would not be renewed and that they should call on the Angolan Embassy for further information.

At that embassy, they were told that in order for them to remain lawfully in South Africa, they had to apply for Angolan passports or face “repatriation”.

The brothers did so as it was the only option available to them to lawfully remain in South Africa, the place that they regarded as their home. At the time they were in high school and needed to regularise their stay in South Africa in order to continue with their schooling. The brothers said the alternative of being repatriated would mean “a forced removal from our country of birth and home country to a foreign land”.

Apart from them never having been to Angola, they have no family there and cannot speak any of the country's languages.

Although they did qualify for citizenship in terms of the law, Home Affairs steadfastly refused to grant this.

The department claimed the brothers never applied for citizenship because they “failed to make use of the proper application forms”.

In turning down the appeal, the judges frowned upon this argument as there were simply no such forms in existence.

www.samigration.com

Can I get an ID if I was born in SA to foreign parents but my uncle has a valid South African ID?

SA Migration | 10 Jan 2022

The short answer

Possibly. In terms of the 2018 judgement in the Naki case, Home Affairs should accept and consider your application.

The whole question

Dear Friend

I was born in South Africa, although my parents are foreign. I am currently undocumented and cannot further my studies (I have completed matric). I only have a birth clinic card. My father returned to his country and my mother has disappeared. The only family I have left is my father's younger brother who has a valid South African ID. What can I do to get documented?

The long answer

As you were born in South Africa to foreign parents, you can apply for South African citizenship when you are eighteen, if you have not lived anywhere else but South Africa, and if your birth has been registered under the Births and Deaths Registration Act of 1992. (This is in terms of the amended Citizenship Act.)

But as your birth was not registered under the Births and Deaths Registration Act, you need to apply for a birth certificate in “late registration of birth”. It is a long and difficult process, especially as your parents have left the country, but at least there is your father’s brother who will have to stand in and assist you. 

As you are older than 15 years, you would need to provide the following documents to Home Affairs (DHA). You can get the forms from their offices:

• Application for an ID (Form B1-9);
• Completed Forms DHA-24, DHA-24/A x 2 and DHA-288 for the registration of birth;
• Supporting documentation like proof of birth, clinic card etc, as well as written reasons why the birth was not registered within 30 days of birth;
• Fingerprints of parents or adoptive parents;
• Your biometrics (fingerprints);
• Certified copies of parents’ IDs, or asylum permit etc;
• Certified copy of ID of next of kin (this would have to be your father’s brother).

Even though it probably won’t be possible for you to produce all these documents, and neither of your parents can be there, your application must still be accepted and considered by Home Affairs in terms of the Promotion of Administrative Justice Act of 2000 (PAJA), which gives effect to the constitutional right to administrative action that is lawful, reasonable and procedurally fair.

In the 2008 Naki case in the Eastern Cape High Court, the court ruled that the Births and Deaths Registration Act should be read to mean that both parents’ documents must be presented “where possible” when registering a birth. This is because the court took into consideration the difficulties that an undocumented parent/s would experience in trying to register the birth of their child. 

www.samigration.com

Can an adult apply for South African citizenship through their informally adoptive father?

SA Migration | 09 Feb 2022

The short answer

If her de facto father was assumed to be her biological father, the child would qualify for South African citizenship by descent

The whole question

Dear Athalie

What is the legal status of a child who was born in Zimbabwe to a Zimbabwean mother who then married a South African man living in Zimbabwe at the time? The South African husband gave the baby his name and signed her birth certificate. Can the child apply for South African citizenship through her informally adoptive father, and can the father could legally adopt her, given that she is 22 years of age?

The long answer

If the man has acted as the child’s father all her life, married her mother before the child was born, gave the child his name and signed her birth certificate, then why should the authorities suspect that he is not her biological father in the first place? He has been her father in fact, ‘de facto’ as the law puts it, even if he is not her parent biologically.

If her de facto father was assumed to be her biological father, then the child would qualify for South African citizenship by descent, if she was born outside South Africa and one of her parents was a South African citizen at the time of her birth and if her birth was registered.

This is the list of documents required by Home Affairs in South Africa for an application for citizenship by descent: 

• Completed BI-24 form to be endorsed by South African parent of child being registered;
• Completed BI-529.  Child and South African parent;
• Original or notarized copy of foreign birth certificate;
• Original or notarized copies of South African parents' proof of citizenship, such as a birth certificate, ID book, or valid passport;
• Original or notarized copy of parents' marriage certificate;
• A notarised letter of consent from the child's non-South African parent giving her/his consent for the child's birth to be registered in South Africa;
• Adoption order (for those who are adopted by South African citizens).

If for some reason she does not qualify for citizenship by descent, then she could automatically qualify for South African citizenship if she was adopted by a South African citizen. 

In South African law, according to the Children's Act 38 of 2005, a child is considered someone under the age of 18 years and when it comes to the adoption process, anyone older than 18 cannot be adopted in South Africa.

In Zimbabwe, too, the person to be adopted must be under 18 years of age.  But unlike in South Africa, Adoption.com states that “A waiver from the Ministry of Public Service, Labour and Social Welfare is required for children over the age of 18.”

So it appears that it is not an open and shut case as in South Africa.

Danai Chirawu of kubatana.net says in a 2021 article that, in Zimbabwe, men cannot individually adopt girls except in “certain proven circumstances” and with permission from Social Welfare (Ministry of Public Service, Labour and Social Welfare). She goes on to say that a foreigner can adopt, “provided that they have been given permission by the Minister of Public Service, Labour and Social Welfare.” She says that the High Court “may endorse foreign adoptions.”

In South Africa, the law says that “an adoption order in relation to an adult may be granted by the Court if there was a significant parent-to-child relationship in existence between the intending adoptive parent or parents and the adult before they attained the age of 18 years.” 

That might be a good point for a lawyer to advance when applying for a waiver from the Ministry of Public Service, Labour and Social Welfare.

The following quote from Anne Louw (South Africa) in a 2017 paper for A de facto adoption doctrine for South Africa?, may be helpful too: 

“…In the case of Maneli v Maneli, the court held that by agreeing to give the boy his name, the defendant impliedly represented to the boy himself, to the plaintiff and to the world at large that he proposed to stand in relation to the boy as a father to a son. The court argued that during the course of the marriage the defendant discharged the duties of a father in his dealings with the boy – willing to place himself, literally, in loco parentis when the family was still intact.” 

“… With reference to the Maneli case, the curator furthermore stated that nothing in the Children’s Act precludes the recognition of de facto adoptions.”

“…It should be evident from the above exposition that South African courts have consistently recognised a de facto adoption for purposes of the recognition of a duty of support between the child and the putative parent. A doctrine of de facto adoption has thus evidently emerged in this context. Equity in this context can be justified by the child’s constitutional rights to parental care and best interests encapsulated in section 28." (of the Constitution)

Perhaps your best bet is to approach a lawyer or an organisation that assists people who cannot afford lawyers.

www.samigration.com

ANC to push for overhaul of migration laws

EWN | 09 Jan 2023

ANC national executive committee (NEC) member David Mahlobo said this was one of resolutions taken by the party’s peace and stability commission during its 55th national elective conference.

JOHANNESBURG - The African National Congress (ANC) said the country’s migration laws must be overhauled.

ANC national executive committee (NEC) member David Mahlobo said this was one of resolutions taken by the party’s Peace and Stability commission during its 55th national elective conference.

Mahlobo said the ANC does not support xenophobia against foreigners who live in the country.

He said that the legislation needed to be clear on how law enforcement entities deal with asylum seekers, immigrants, and refugees.

“We agreed that laws are being overhauled," said Mahlobo.

"All the migration laws we'll engage with the United Nations so that we can be able to put certain conditions around the ascension that we did make but at the very same time our view remains: Africa remains one. We must integrate."

At the party's recently-held 55th national conference at Nasrec, last month, Deputy Minister of State Security and ANC NEC member, Zizi Kodwa, said that the country's citizenship, refugee and immigration acts all needed to be overhauled and reviewed.

"Without being xenophobic, we need to create domestic stability in the country. I think an uncontrolled migration and everybody else may create social instability in the country as we have seen now."

Home Affairs Minister Aaron Motsoaledi said that the ANC had a policy paper calling for the country's citizenship, refugee and immigration acts to all be reviewed.

"The system that is happening now with our immigration is not sustainable, it can't go on forever."

www.samigration.com

Anomalies in the issuing of permits and visas to foreign nationals: Aaron Motsoaledi

09 January 2023 -  #SABCNews

The Ministerial Committee Reviewing Permits and Visas has found a lot of wrongdoing on the part of the Department of Home Affairs in the issuing of these documents. It has recommended the appointment of a multi-disciplinary task team to conduct a full investigation of fraudulent applications, corrupt activities as well as maladministration that have been picked up. The long-awaited report reviewing the issuing of, among other things, resident permits, visas for critical skills, study, business as well as citizenship by naturalization has finally been tabled in Parliament. Among others, it has found that some officials have flouted rules and regulations for acquiring South African citizenship. Home Affairs Minister, Aaron Motsoaledi joins us now for this discussion.

Watch Video Here: 

www.samigration.com