Decades-long battle for South African citizenship

SA Migration – 19 December 2022

Two brothers born in South Africa to Angolan refugees still face an uphill battle for citizenship despite a high court order. The matter is now in the Supreme Court of Appeal.

11 November 2020: From left, Cristina Sunda with her sons Joseph ‘Chris’ Jose and Jonathan Jose on the pavement in Yeoville, where they sell vegetables. 

After failing to keep up with the payment of his tuition fees, Jonathan Jose dropped out of university after six months. He has now joined his mother on the streets of Yeoville in Johannesburg, selling vegetables outside the Shoprite on Raleigh Street every morning.

After a long battle, the Pretoria high court ruled last year that the Department of Home Affairs had to grant Jonathan, 22, and his brother Joseph “Chris” Jose, 24, citizenship. They were born in South Africa after their parents fled the Angolan Civil War in 1994 as refugees. But the brothers’ celebration was short-lived as the department appealed the ruling in the Supreme Court of Appeal.

“It’s really frustrating and we know our rights and we know we are South African,” Jonathan said ahead of the hearing in Bloemfontein on Wednesday 11 November. “We feel it should be obvious to everyone that we are South African. 

“It’s not like we were born somewhere else. It’s worse that I was born here, I live here, I was schooled here, so every record in our opinion shows we are South African. But home affairs are still refusing. It makes us wonder, do they even care? To us it’s clear they do not care.” 

Jonathan has said previously that the brothers have never been outside of South Africa. “The only [other] place we have been is Durban. We’ve never left the country at all. I never even thought about leaving the country. I have been here all my life.

“If you compare Angolan people and us, we don’t even know Portuguese. All I know is ‘hello’ in Portuguese and that is all. I adapt well with South Africans, I can speak a bit of isiZulu and I have South African friends. I am not Angolan at all, that is how it is.”

Semantics

The department said the Jose brothers erred when they applied for citizenship through letters written on their behalf by Lawyers for Human Rights. 

“As a consequence of the Department of Home Affairs not accepting application by way of email transmission, there was no record of the [Joseph’s] citizenship application, and accordingly, the department could not respond thereto,” it said.

The department said “the same modus operandi was employed” by Jonathan’s attorneys at Lawyers for Human Rights on 13 July 2016, when they corresponded with the department “to request an application for South African naturalisation”.

The department said more attempts were made on Jonathan’s behalf in the form of an affidavit but because it never responded to any of these “applications”, it never considered any of the applications for either brother.

“It is further contended that the above approach by the respondents is legally inappropriate. The mere fact that the department is called upon to grant citizenship, is a decision/step which falls within the parameters of the definition of ‘administrative action’ as defined in Section 1 of Paja [the Promotion of Administrative Justice Act] in that such a decision ‘adversely affects the rights of any person and which has a direct, external legal effect’,” it added.

The department said the high court order to grant the brothers citizenship was impermissible and it wants the appeal court to refer the matter back to the minister to “consider” whether or not to grant the brothers citizenship.

Requirements met

But “what precisely the purpose of this is and what the minister intends to consider is never made clear,” the brothers’ attorney argued, “given that it is already established that the Jose brothers meet all four requirements contained in Section 4(3) of the Citizenship Act.”

The four requirements are that a child must have been born in South Africa, they must have been born to parents who are not South African citizens and who have not been admitted into the country for permanent residence, the child must have lived in the country from birth until the age of 18, and the child must have had their birth registered in terms of the Births and Deaths Registration Act. 

“The appeal is therefore contrived and serves no useful purpose … The appeal is also unsustainable as a matter of law.” 

While the legalities of their citizenship are being challenged in court, the brothers simply want the matter resolved so they can carry on with their lives.

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“Well, basically, I entered university but then I was forced to drop out because of finances. I did my first six months and then I didn’t get my results because I didn’t have enough finances,” Jonathan said. “So I decided to drop out … Right now I’m not doing much, I’m basically just helping my mom sell on the street. It is really tough.”

He said it was difficult for him and his brother to see their friends go to university or find work, while they sit idle at home. “It hurts because I have friends who are studying and they come over and they give me advice and tell me don’t give up on my dreams. To really see your friends go somewhere in life while you remain in the same spot, that is really difficult.

“As years go by, you wonder how long this is going to take. Am I going to be doing the same thing over and over? For us, me and Joseph, you imagine your life: you start working, you take driving lessons after school, do short courses. But we have not done any of those things. So that really impacts our mental health,” he said. 

Judgment in the matter has been reserved.