Johannesburg - The Department of Home Affairs on Tuesday said that "it welcomes" any probe by South African Human Rights Commission (SAHRC) into allegations that it is denying birth certificates to children born in the country to foreign parents.
"The Department of Home Affairs (DHA) has noted media reports claiming the SAHRC may probe why children born to foreign parents are not automatically awarded citizenship," the home affairs department said in a statement.
"The reports further allege the SAHRC leadership is unaware birth certificates are not issued to these children. Our legislation on this fundamental matter of citizenship is clear.
"We apply the law in line with our role of determining and recording identity and status of persons. Section 28 of the Constitution outlines rights to which children are entitled, including rights to a name and nationality."
The department said the SA Citizenship Act, 1995 (Act No. 88 of 2005) as amended by the South African Citizenship Amendment Act, 2010 (Act No. 17 of 2010) translates, and gives effect to, the Constitution’s provisions. Expanding on citizenship in South Africa it says it is obtained by birth, descent or naturalisation.
"The Department of Home Affairs welcomes any probe as long as we all are conscious of the legal framework within which rights to citizenship in South Africa are protected."
Explaining the basic principle of the South African citizenship, the home affairs said: "A child follows the citizenship or nationality of his or her parents. If one parent is a South African citizen, the child will be a citizen by birth.
"A foreign child adopted by South African citizens becomes a citizen by descent whilst a naturalised citizen is one who has complied with the requirements for naturalisation as set out in section 5 of the South African Citizenship Act."
The department said it was difficult to issue a birth certificate where grounds for citizenship are not established, whether in terms of birth, descent or naturalisation.
"Citizenship is not in every country based on nationality of territory. Children born of permanent residents follow their parents’ status," said the department.
"We do not separate children from parents. What can be done is to record notice of birth of the child. Such notification of birth can thereafter be taken to the parents’ countries of origin for registration and issuance of passport, after which the child will be issued with a derivative permanent residence permit status, upon application."
The department said the issue posing a serious challenge involves children whose parents are in the country illegally.
"Some of the parents do not come forward to regularise their stay, thus disadvantaging their own children. Logically, the longer parents fail to come out of the woods to have themselves documented, thus making themselves lawful in SA, the harder it is to save the children," said the department.
"It is a norm in many countries for parents to declare the name, surname and date of birth of their children. Yet we have cases where parents fail to take responsibility to safeguard their children’s identity and nationality, precisely because they themselves are in the country illegally."
The department said South Africa had gone out of its way to assist people, even by extending special permit dispensations to nationals of Zimbabwe and Lesotho who are in South Africa illegally, to regularise their stay.
"There are those who did not come out to the open in spite of a moratorium on deportations. Not all persons are in South Africa with conscious intentions here to stay," said the department.
"There are those who would want to go back home when their business is done. Issuing birth certificates is handled with utmost care as it serves to confirm nationality."
The department said in some instances, it may go against aspirations of parents or of children when they become adults.
"It is not for us therefore to prevent affiliation of individuals to their nations, where they are citizens. Governments implement rights in accordance with their national laws and international obligations," explained the department.
"This depends on the context and country. South Africa is no exception. In terms of our history, we know what it means to be a non-citizen in your country. We wish that to nobody."