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A dispute over whether the children of foreigners born in South Africa prior to January 2013 and who know no other home than the country should become naturalised citizens when they turn 18 is headed to the Constitutional Court.

Home Affairs has taken to the apex court to seek leave to appeal a judgment that ordered it to put in place regulations for the processing of citizenship applications of five youths who dragged it to court.

The Supreme Court of Appeal (SCA) ruled last year that it was unlawful of Home Affairs to not allow the five to apply for citizenship, in accordance with the 2013 amendments of the Citizenship Act.

This SCA ruling supported a judgment delivered by the Western Cape High Court in 2017, which went in favour of Miriam Ali, Aden Nuredin Salih, Kanu Teka Nkololo, Caroline Masuki and Murphy Ngaga.

They dragged Home Affairs to court because its branches sent them “from pillar to post” on grounds that the minister had yet to promulgate regulations for processing the applications.

The regulations have not been promulgated since the 2013 amendments, which were adopted to allow children born to foreign parents in South Africa to apply for naturalisation upon turning 18.

Home Affairs went on to insist that the 2013 amendments were not retroactive, leaving itself in a legal quagmire.

It was common cause that the five, aged over 18, were born in South Africa, their births were registered in the country in the 1990s and - as the SCA put it - “they have lived here since birth and have no other home apart from South Africa”.

The SCA rejected the department’s position that the five were welcome to apply for refugee status, saying this was “conferred on someone whose true home is elsewhere”.

In appeal papers filed at the Constitutional Court, Home Affairs wanted the apex court to rule that it was unlawful of the SCA to make an order on administrative functions.

The department argued that the SCA order was an encroachment on the doctrine of the separation of powers, which gave exclusive powers to ministers to decide the operational measures of departments.

Representing the five youth, the Legal Resources Centre (LRC) will ask the Constitutional Court to dismiss the Home Affairs application with costs.

Elgene Roos, an attorney at the LRC, said Home Affairs could not cry foul that a court was usurping its powers while it had failed to exercise those powers since 2013.

“The (SCA) did not interfere with the minister’s powers, which still remain,” Roos said. “However, the minister cannot fail to provide a mechanism for asserting a statutory right and complain when a court does so.”

The department’s first hurdle in the matter will be convincing the Constitutional Court to grant it leave to appeal. @BonganiNkosi87