The North Gauteng High Court set a precedent last week when it ordered the government to change its citizenship act to facilitate the granting of citizenship to children born in the country to foreign parents - and, therefore, prevent statelessness.
The order was made in a landmark case involving the 6-year-old daughter of Cuban parents, who was born in South Africa but could not inherit Cuban citizenship, as stipulated by Cuban laws. Cuban law states that children born outside Cuba, even to Cuban parents, are not Cuban citizens.
The case was brought to the high court by SA Lawyers for Human Rights (LHR) last June. It launched the case on behalf of the child against the Department of Home Affairs. On Monday, LHR lawyer Liesl Muller said the outcome was one of the first judgments of its kind.
“We obtained an order declaring the child a South African citizen and directing the Home Affairs minister to issue her with a South African ID number and birth certificate.”
The case had tried to explore the practical meaning of section 28(1) (a) of the constitution, which stated every child had the right to a name and nationality from birth. “The case also wanted clarity on section 2(2) of the Citizenship Act, which provides South African citizenship to those born in the territory and who are stateless,” she said.
“South Africa has a duty to prevent statelessness and to provide children born in its territory with a name and a nationality from birth.
“This responsibility is in line with the African Charter on the Rights and Welfare of the Child and other international law and standards,” Muller said. This basic right was also entrenched in the constitution, she said. “It is the state’s responsibility to protect it.”
Failure to register the child as a citizen of South Africa was unlawful, and the high court order read: “The first respondent is ordered to enter the applicant into the national population register as a citizen.”
The department was also ordered to issue the girl with an ID number and amend and re-issue her birth certificate. LHR will be making submissions to Home Affairs on drafting of the regulation. Muller said LHR would follow up on the implementation of the court order “to realise the purpose of this section”.
- Pretoria News