It has taken four years of legal battles – but now, if you were born in
South Africa to foreign parents, you can apply for citizenship. It has been an
“agonizing journey” for those who consider South Africa to be their only home.
The department of home affairs’ opposition to the court bid by five
adults, representing others in a similar situation, for the vindication of
their rights, was dealt a death blow by the Constitutional Court last week. The
court simply ruled that it would not hear any further argument on the matter.
The department had not filed its papers in time, and it had not given
good reason for this. What this means for Mariam Ali, Aden Salih, Kanu Nkololo,
Caroline Masuki, Murphy Nganga and any others “similarly situated” is that
their previous victory in the Supreme Court of Appeal (SCA) now stands.
In terms of that order, the minister must accept their applications for
citizenship and make a decision within 10 days.
The SCA declared that if you were born in South Africa to foreign
parents who have not been admitted as permanent residents, you qualify to apply
for South African citizenship upon becoming a major – if your birth was
registered and if you have lived here all your life, irrespective of the date
of your birth.
It also ordered the minister to enact the necessary forms to allow for
such applications within one year. Pending this, he must accept applications on
affidavit. The application, brought with the assistance of the Legal Resources
Centre (LRC), was first set down in the Western Cape High Court.
It was argued that the centre’s clients had all complied with the
Citizenship Amendment Act, which came into effect in January 2013. They were
all born in South Africa to foreign parents and they had all turned 18, but
their applications for citizenship under naturalisation laws were being
refused.
In fact, they said, they were being told that such an application form
did not even exist.
In that court, the minister argued that the act only applied to children
born after January 2013 and could not be applied retrospectively. In fact, his
lawyers argued, it did not even apply to children who turned 18 after that date
but only to children born after that date.
Any retrospective application would create “an unnecessary flow of
applications and burden the already strained resources of the department”. The
Western Cape High Court ruling in favour of the centre’s clients was taken on
appeal to the SCA by the minister.
There, the department of home affairs changed its argument.
Retrospectivity was no longer an issue. Instead, it was argued that those
affected should have put the minister on terms to deal with their applications
and, if they were refused, they could then launch court proceedings to review
and set aside the decisions.
“But this was untenable,” the judges said. “It is difficult to
understand on what basis the minister could have made any decision. They were
never given an opportunity to apply. They were just turned away.
“The argument is consistent with the ongoing attempts to frustrate and
delay their application. It is not in the interests of justice to send them
from pillar to post, simply because the minister adopted a supine attitude that
the regulations will only be promulgated in due course.”
They were being treated unfairly, the court ruled, dismissing the
appeal. Sherylle Dass, LRC regional director in Cape Town, said they had
opposed the state’s application for leave to appeal to the Constitutional
Court, saying it was an attempt to have a “second bite of the cherry” in spite
of conceding the bulk of their submissions in the lower courts.
“Despite these concessions, some 10 months later, the state decided to
change its stance. We believed it was an abuse of process. They plainly had no
reasonable prospects of success and again it showed a total disregard for
taxpayers, who have to foot the bill for these types of vexatious proceedings.”
She said that during those 10 months, when there was no indication of
any appeal, the clients had submitted their citizenship applications but they
were not dealt with.
“Following the dismissal of their appeal, we will now be demanding the
adjudication of those citizenship applications and we will approach the courts
if necessary, should a decision not be made within 10 days, in accordance with
the SCA ruling.
“Our clients have had to endure a long and painful journey to obtain
citizenship, with some of them all but giving up hope of being finally accepted
by a country they have grown to love – the only country they have called home.
“A large part of this agonizing journey could have been avoided if
decision makers within the department of home affairs exercised reason and
caution by not arbitrarily abusing the court processes to delay and frustrate
the exercise of the clear and unequivocal right of these applicants.
Minister of Home Affairs v Miriam Ali and Others [2018] ZASCA 169
(SCA) (Case no. 1289/17, Supreme Court of Appeal – Court Order Date: 30
November 2018)
2.1 The matter pertains to the interpretation of section 4(3) of the South
African Citizenship Act 88 of 1995 (amendment that came into effect on 1
January 2013) in which the main issue was whether or not the section applies
with retrospective effect and further is the respondents (on appeal) satisfy the
requirements of citizenship by naturalisation. The question was whether in the
absence of Regulations, the High Court was correct in directing the Minister to
accept applications on affidavits as the order encroached upon the doctrine of
separation of powers.
2.2 The Supreme Court of Appeal issued the order that:
“The Minister shall –
3.1 Within one year of the date of this order make regulations in terms
of s 23(a) of the South African Citizenship Act 88 of 1995 (the Act) in respect
of applications for citizenship by naturalisation in terms of s 4(3) of the
Act;
3.2 Pending the promulgation of the regulation in 3.1 above, accept
applications in terms of s 4(3) South African Citizenship Act 88 of 1995, on
affidavit.”.
Why has his department not fully complied with the court order?
2.3 The DHA was advised to approach the Constitutional Court (“CC”) as the
Order of the SCA had the effect of encroaching upon the subordinate legislative
powers of the Minister. The CC declined to hear the matter largely because the
DHA delayed in launching the appeal proceedings.
What steps have been taken to fully comply with the order?
2.3 The draft Amendment Regulations to deal with the procedure and
requirements for making an application have been prepared and finalised.
However, the draft Amendment Regulations must be published for public comments
before they are promulgated and due to the National State of Disaster,
especially the period between 26 March 2020 and early July 2020, a decision
taken was that the DHA may not be able to obtain the adequate public comments
due to lockdown Regulations. The draft Amendment Regulations ha been gazetted
for public comments.
2.4 The applicants have been issued with certificates for citizenship by
naturalization.
By what date will his department fully comply with the order?
The DHA will fully comply by 15 September 2020.
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