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.