Mulowayi v Minister of Home Affairs is an appeal to the South African Constitutional Court from a decision of the High Court of South Africa dealing with the validity of a regulation amending the South African Citizenship Act 2010 ¹.

The legal issue to be determined by the Constitutional Court was on a narrow technical point.  The reason I chose to write about this case is because it touches on wider issues arising from South Africa’s citizenship regime — especially as they affect stateless people.

The statelessness question in Mulowayi 

In this case, the third applicant, Gaddiel, who is a child, was born in South Africa without a nationality.  He is stateless.  Gaddiel should have been substantively protected as a stateless person by provisions in South Africa’s Citizenship Act ².  The Act grants citizenship to a person who is not a citizen or national of any other country or has no right to such citizenship and who has been registered in accordance with relevant South African laws.

However, this substantive protection is only attainable if Gaddiel undertakes further litigation challenging the failure of the South African government to enact a process for Gaddiel to make an application under the Citizenship Act.  The lack of an application process under the statelessness provisions of the Citizenship Act had already been raised in an earlier case, Minister of Home Affairs v DGLR [2016] ³.  Despite the decision in DGLR, the Department of Home Affairs has taken no steps to remedy the omission.

The story of the Mulowayi family, and especially their son, Gaddiel, demonstrates the challenges so many stateless people face navigating complex administrative processes just to get access to basic rights that should already be available to them.

Statelessness in South Africa

I have written about the challenges faced by children in South Africa before arguing, as many rights groups have done, that legal identity should not be conditional on the status of the child’s parents ⁴.  The risk of statelessness in South Africa, especially to children, increased when South African authorities sought to limit those eligible to be registered at birth.  Children whose parents are foreign nationals and have no right to permanent residence in South Africa could not have their birth registered meaning they would struggle to establish their legal identity ⁵.  Denying children a birth certificate in a state where birth registration is so closely link to nationality is a serious problem.   It will impact not only those children being denied a certificate today, but future generations too ⁶.

Lack of a legal identity is one reason why so many children are now at risk of statelessness.  Another, aptly illustrated by Gaddiel Mulowayi’s case, is the lack of administrative process and administrative justice that allows those who are stateless to rely on existing laws offering those who are stateless, or at risk of statelessness, much needed protection. Gaddiel should be able to rely on South Africa’s well drafted and international law compliant provisions to acquire South African citizenship.  Yet the process by which he can do that has not been put in place.  Liesl Miller, a South African attorney who heads up the statelessness project at Lawyers for Human Rights sums up the problem of statelessness in South Africa:

www.samigration.com

Politcal parties raised concern of the problem of long queues where often people are turned away because the system is offline.

Minister Aaron Motsoaledi came under fire from some opposition parties in the National Assembly for what they say is the chaotic state of the Home Affairs department.

Political parties raised concern about the problem of long queues where often people are turned away because the system is offline.

During the department’s budget vote debate, parties also questioned why the department has still not introduced an online appointment system.

Inkatha Freedom Party (IFP) Liezl van der Merwe says, “Imagine waking up at 4 am using your last bit of money on transport to go to your local Home Affairs office hoping that today you’ll be able to get an identity document (ID) because that’s what stands between you and a job. It is what stands between you and providing for your family. What stands between you and a brighter future. Then consider the mother who travels to a Home Affairs office in search of a birth certificate that document stands between her and a Sassa grant without which she cannot feed her newborn baby but for many visiting a Home Affairs office in taking a day off work to queue for hours on End only to be told to come back tomorrow because the systems are offline again systems that are perpetually offline have become synonymous with this department.”

Democratic Alliance (DA) Angel Khanyile says, “The issue of long shoes in different parts of the country and by various members of the portfolio committee had been raised on numerous occasions yet the situation remains the same of this country spent days and weeks without being attended to Andrews days off work because the department has not introduced the appointment system.”

Economic Freedom Fighters (EFF) Mgcini Tshwaku illustrates this point by quoting KwaZulu Natal Premier Sihle Zikalala following a recent visit to a Home Affairs Office.

Zikalala said, “There are people who are arriving at Home Affairs at 4:00 in the morning and the home Affairs open at 10:00 where it opens at 8:00 and then people start working at 10:00 and up until 12 and then after that, you find that they’ll system are offline they’ll go to lunch and you will not know what is actually happening. What is happening right now is a crisis everywhere…”

“People are crying about the system being online not being helped up on time by the Home Affairs. So in that budget, we did not see a plan or money allocated to saying that is what we’re going to make sure that none of which I need the money so that you are ensuring that these queues and also the systems which are offline at the Home Affairs are going to be eradicated,” Tshwaku explains.

Motsoaledi acknowledged the problem and assured members that they are tackling it.

“When you listen to members of the opposition parties talking about the documentation you’d think everything in Home Affairs has. I mean all the offices are closed and there’s no work. The challenge about down time which we experience from SITA. We have mentioned it in the portfolio committee. We have got a plan and a program to deal with that. It also disappoints us I must say and I’m not going to hide it,” Motsoaledi says.

www.samigration.com

South African banks are eager to expand the availability of E-Home Affairs in South Africa — they are just waiting for the Department of Home Affairs to sign a partnership agreement before they can roll out the service to more branches.

This is according to Nedbank, which was answering questions from MyBroadband regarding the delays it faced in rolling out new E-Home Affairs branches during 2020.

At the start of 2020 — before South Africa recorded its first case of COVID-19 — Absa, FNB, Nedbank, and Standard Bank revealed their plans to expand their E-Home Affairs footprint substantially by the end of the year.

However, only Standard Bank was able to add E-Home Affairs capabilities to some of its branches during the year.

Nedbank told MyBroadband that its roll-out plans were affected by COVID-19, the National State of Disaster and the ensuing lockdowns, but said that the pandemic was only part of the reason for the delays.

“The delays are largely as a result of the finalisation of the partnership agreement with the Department of Home Affairs, and we have not been able to open any more [E-Home Affairs] offices in the last year aside from those already in place,” a spokesperson for Nedbank stated.

Nedbank said it intends to expand its E-Home Affairs offering, but it is waiting on the Department.

“There is big dependency on the Department of Home Affairs finalising a partnership agreement with participating banks that will see banks offering this service as part of their own operating models — using their own staff,” Nedbank said.

“Currently, the [Home Affairs] appointed staff manage and operate dedicated areas within participating banks where they process appointments that are booked via the DHA website.”

A glaring gap in the E-Home Affairs network is the fact that one of South Africa’s largest banks, Capitec, does not offer the service.

The E-Home Affairs system only allows you to book appointments and collect your documents from a bank where you are a client.

If your bank does not participate in the programme, or if your bank does not have an E-Home Affairs branch near you, then you will have to book your biometric data capture appointment at the best available Home Affairs office.

MyBroadband asked South Africa’s big five banks and the Department of Home Affairs why the system was designed this way.

“This decision was informed by the Department of Home Affairs,” Nedbank told MyBroadband.

“This is how the appointment booking process is set up on the [E-Home Affairs] website. It’s the same process for all banks and ensures that it does not create a competitive advantage for any one bank.”

Standard Bank told MyBroadband that this was an agreement between all banks at the time when the e-Channel proof-of-concept — which ultimately became E-Home Affairs — launched in 2015.

FNB didn’t answer the question directly, but said that the E-Home Affairs system has become an essential service that has issued over 251,000 passports and smart IDs through its branches.

“We believe that the consistent expansion of this essential service will provide more customers with convenience by avoiding long queues when applying for their smart IDs and passports,” said the CEO of FNB Points of Presence, Lee-Anne van Zyl.

Absa declined to comment and referred questions to Home Affairs, while Home Affairs and Capitec did not respond to requests for comment by the time of publication.

However, Capitec previously told MyBroadband that it has no plans to add Home Affairs service desks, as it has smaller optimised premises to help keep its fees as low as possible.

www.samigration.com

This means that :

A refugee can apply for permanent residence if he or she has been living in South Africa on a refugee status permit for a minimum of five consecutive years.¹⁴³ For a recognized refugee to receive a permanent residence permit, the standing committee for refugee affairs must have certified that that person will remain a refugee “indefinitely.”

On March 30, 2004, the Standing Committee for Refugee Affairs published a decision intended to circumscribe the conditions under which certification shall be issued, namely: “…Where the appellant is likely to remain a refugee for the foreseeable future and the “foreseeable future” should be one year.”

Once the South African government has awarded you refugee status. The government will issue you with an identity card which shows that you are a refugee. You will be issued with a renewable Refugee Permit which is referred to as a Section 24 Permit.

You will be entitled to apply for a United Nations Travel Document tha tallows you to travel to any country except your country of origin. Should you travel to your country of origin for any reason, the South African government will stop recognising you as a person in need of protection. You will therefore cease to be a refugee. By voluntarily going back to your country of origin, you will be indirectly saying that you are safe there, hence you will no longer deserve protection or refugee status. Refugees have the right to work and enjoy most of the rights in the South African Constitution except the right to vote.

It is possible for refugees to eventually get a South African passport after a long period of time, which will entitle you to travel anywhere in the world including your country of origin should your fear of harm disappear. This will also entitle you to have a South African identity card and to be able to vote.

www.samigration.com

In June 2014 the Department of Home Affairs amended the Immigration Act. The Study Visa / Study Permit was one the categories affected.

Background

For both standalone and dependent students who made applications prior to June 2014 for permission to study in South Africa, the application made would have been for a study permit.
The terminology, study permit, has now been replaced and post June 2014 all applications will be for a study visa.

What effect does this have?

The change in terminology in itself it somewhat superficial. The rationale behind the decision, to alter the naming from study permit to study visa, was simply to draw a distinction between temporary residence (VISA) and permanent residence (PERMIT). As an application for permission to study is a temporary residence application it will therefore now be referred to as a study visa.

What if you hold a study permit already?

If you are an existing study permit holder there is no need for concern. The conditions under which your study permit was issued still remain. In short, you have permission to attend the learning institution that was specified in your study permit application as well as work for 20 hours per week.

Will I be able to renew my study permit?

Technically the answers is no as a study permit no longer exists but in reality you will simply make an application for a study visa. You can read more about renewing your study permit / visa here.

Have there been any changes to the study visa?

Yes there have. We repeat – these do not effect your existing study permit. In case you are thinking of renewing your study permit (now a study visa) you should be aware:

• Study visa’s will only be issued where the learning institution is approved by the Department of Higher Education and Training.
• You must apply for a new study visa at least 60 days prior to the expiry of your study permit.
• There is a greater emphasis placed upon the leaning institution to ensure you comply with the conditions of your study visa. This will see stricter controls and accountably put into place.
• Those who have completed a Phd in South Africa will now qualify for a work permit under a new category called the critical skills work visa.