- a seven-year legal battle fought by Lawyers for Human Rights on behalf of four people born to SA parents outside the country.
- The case centred on the Citizenship Amendment Act of 2010
and how it applied to people born outside of South Africa before January
2013.
- Justice Sisi Khampepe slammed the Department of Home Affairs, describing its conduct in the matter as “brazenly incompetent”.
Children born in other countries are entitled to South African
citizenship as long as one parent is South African, the Constitutional
Court has ruled.
A seven-year legal battle is finally over and the court has ruled
that the Department of Home Affairs must immediately recognise as
citizens Yamika Chisuse, born in 1989 in Malawi; Martin Ambrose, born in
1970 in Zimbabwe; Amanda Tilma, born in 1969 in Zimbabwe; and Emma
Dullart, born in 2006 in Accra.
The ruling by the court has cleared up any confusion
about the country’s citizenship by descent laws, which were interpreted
by Home Affairs to mean that nobody born in other countries after 2013
qualified for citizenship, irrespective of whether their parents were
South Africans, GroundUp reported.
Represented by Lawyers for Human Rights, the applicants started
negotiations with the department in 2013 and first went to court in
2016.
The department failed to file opposing papers and it was finally set down to be heard in May 2019.
The department asked for a further postponement, but this was refused and the matter was heard unopposed.
The applicants claimed that the Citizenship Amendment Act of 2010
(which came into effect in 2013) was not being applied retrospectively,
resulting in “wholesale deprivation of citizenship rights overnight”.
They said the provisions of the Act did not provide for anyone born
outside of South Africa to a South African parent before January 2013 to
obtain citizenship.
‘Risks of statelessness’
The Gauteng High Court in Pretoria ruled in their favour, declaring sections of the act unconstitutional.
But the Constitutional Court has now declined to ratify this, saying that the act was misinterpreted.
In a unanimous ruling handed down this week, Judge Sisi Khampepe said
the issue surrounded the wording in the act which stated “any person
who is born”.
This was interpreted to mean only those born after 2013.
The judge said the only reasonable and constitutional compliant
construction of the text was that it included all persons, born
yesterday, today and tomorrow.
“An interpretation that favours a prospective-only operation in this instance effectively abolishes existing rights.
“Moreover, a finding that the section only applies prospectively
would have the effect of excluding not only the vast majority of those
who had acquired citizenship by descent, but also those who, like the
applicants in this matter, are excluded from the ambit of the section
merely by the date of their birth,” said Khampepe.
Khampepe said:
This interpretation would also expose some individuals to the risks
of statelessness and it would be contrary to the spirit and purpose of
the legislation, which seeks to widen the pathways to South African
citizenship rather than narrow them.
‘Brazenly incompetent’
The judge labelled the department’s conduct “brazenly incompetent”.
While it had belatedly, before the Constitutional Court, conceded to an
interpretation of the act that would recognise the applicants as
citizens, it had continued to oppose the application on a “factual
basis”.
“The ordinary rule is that costs follow the results and the
applicants have been unsuccessful in confirming the order of invalidity.
“But clearly this case encompassed more than that – it was about
vindicating the citizenship rights of the applicants who have been
dragged from the proverbial pillar to post by the government’s
intransigence, indifference and inefficiency.
“The applicants have been successful in vindicating these rights and
are entitled to their costs for the significant and prolonged
litigation.
“The documents must be issued as soon as possible. They have already
suffered greatly by the dilatory conduct of the government and there is
no reason why they should continue to be at their mercy.”
Liesl Muller of Lawyers for Human Rights said the case was about one simple thing – dignity.
“The application was opposed to the bitter end, this despite two of
the applicants providing DNA evidence of their link to a South African
parent and two others having government-issued proof of their links.
“Our clients expressed overwhelming relief … It may have been a
seven-year legal battle; for them it has been a life-long struggle.”