Undocumented migrant children attend a class at the Refugee Social Services at the Diakonia Centre in Durban. (Photo: Leila Dougan / Daily Maverick) Less

Citizenship as a tool of exclusion was a staple of apartheid-era oppression in South Africa. It was with this in mind that the opening words of the Freedom Charter and later the preamble of the Constitution proclaimed, ‘South Africa belongs to all who live in it’.

Unlike the US or our neighbour Lesotho, South Africa does not confer citizenship simply because you were born in its territory – there must be a further tie to the country. Children born to South African citizens (whether one or both parents) are automatically citizens, and children born and registered to foreign parents who were admitted for permanent residence qualify for citizenship when they turn 18 if they have lived in South Africa their whole life.

But what about the many children born in South Africa to parents who were neither South African citizens nor foreigners admitted for permanent residence?

While the Citizenship Amendment Act of 2010 has been criticised for restricting citizenship rights, including the “midnight deprivation” of the right to citizenship  acquired under previous legislation, it took one positive step towards inclusion by broadening the category of persons eligible to apply for citizenship.

The Citizenship Amendment Act, which came into force on 1 January 2013, provided a new pathway to citizenship: children born and registered in South Africa to parents who were neither South African citizens nor permanent residents at the time of birth and who live their whole life in South Africa until they turn 18 have the right to apply for “citizenship by naturalisation”.

This progressive provision recognises the attachment and lived experience that young adults born and raised in South Africa have in their country of their birth. The provision promotes the spirit of those opening words of the Freedom Charter.

However, while the right to apply for citizenship in terms of this provision exists, there is no formal way to apply. This is because the minister of home affairs (including the six ministers who occupied that position since the Citizenship Amendment Act came into force) has not made the necessary regulations or application forms.

In 2017, five frustrated young adults who were eligible but unable to apply for citizenship approached the Western Cape High Court with the assistance of the Legal Resources Centre. The minister’s response? The provision only applies to children born after 1 January 2013, not before.

They should apply for asylum, or permanent residence, not citizenship. The court disagreed.

The court determined that the provision also applies to children born before 1 January 2013, and that by preventing them from obtaining or even applying for citizenship, the minister infringed on their dignity and personhood and effectively granted them “a status of ‘second-class’ citizens”.

The minister appealed the matter, but the Supreme Court of Appeal was equally scathing in its review of his interpretation of the provision. It found that sending the group of young adults from “pillar to post” infringed on their constitutional rights, and concluded that the “state of affairs cannot be countenanced.” It upheld the High Court’s finding that the provision also applies to children born before 1 January 2013, and ordered the minister to make the necessary regulations and application forms, and to accept applications on affidavit in the meantime. 

This was in 2018. The minister appeared to do nothing. No regulations were processed, no forms published. The young adults who brought the matter to court still weren’t assisted by the department.

About nine months later, in 2019, well beyond the normal prescribed periods for appealing a judgment, the current minister (Aaron Motsoaledi) sought to appeal the matter again, effectively sending the group of young adults from pillar to post, to the doors of the Constitutional Court. Earlier this month, the Constitutional Court refused the minister’s application to appeal. The minister’s appeal was refused as he had failed to provide adequate reasons for the delay in appealing.

It is now a decade since the Citizenship Amendment Act was passed into law, and seven years since it came into effect. Despite this, there is no indication from the Department of Home Affairs or the minister that we should expect the regulations to be made soon. The minister has been under order of the Supreme Court of Appeal to make the necessary regulations by November 2018.

This delay does not come as a surprise given the department’s history of delayed implementation of court orders. One need only look to the unreasonable delay in implementing the court orders to reopen the Port Elizabeth Refugee Reception Office (which was only done three years after the deadline given in the court order), the ongoing non-implementation of a September 2017 Supreme Court of Appeal order to reopen a fully functional Refugee Reception Office in Cape Town by 31 March 2018, or most recently, a November 2019 Supreme Court of Appeal judgment ordering the department to assist foreign nationals to conclude civil marriages in South Africa, which according to this news article is still not happening.

The minister’s failure to make the regulations and give effect to the Citizenship Amendment Act – in spite of the act having been passed by Parliament, signed into law by the president, and being ordered to do so by the Supreme Court of Appeal – poses serious challenges to the Constitution, the rule of law, and the democratic values that South Africa is so proud of. This should concern every South African, and not only those would-be citizens most impacted in this case.

The Scalabrini Centre of Cape Town, a not-for-profit organisation, is one of many organisations that have been approached by several young adults who hold this right to apply for citizenship but are unable to exercise it.

Many of these young adults are children of Angolan former refugees, children of refugees from Rwanda, Somalia and the Democratic Republic of Congo whose parents claimed asylum in South Africa in the late 1990s or early 2000s, or other long-time migrants in the country.

In stark contrast to the words of the Freedom Charter and the Constitution, these young adults are living in a state of exclusion. They hold the right to apply for citizenship, but cannot exercise this right. They are asked to have a passport and visa to continue living in the only country they have ever known.

While the minister did not create this problem, he is well-poised to fix it. Motsoaledi should act where his predecessors did not.