Being merely born in South Africa is not enough to determine the citizenship of a child. For a child to obtain citizenship by birth in South Africa, one of the two parents must be a South African citizen, naturalised or permanent resident.
This has been clarified by Home Affairs Deputy Minister Njabulo Nzuza, who explained that children born in South Africa - with neither parents being South African - do not automatically acquire South African citizenship.
Nzuza’s statement comes amid afrophobic attacks aimed at Miss SA hopeful Chidimma Adetshina.
Born in 2001 in Soweto to a Nigerian dad and a South African mom with Mozambican roots, Adetshina has faced afrophobic and xenophobic attacks on social media, with South Africans questioning her citizenship. She is a South African citizen.
Nzuza says those who feel strongly against Adetshina and which ever other citizen, they “have a right to come to Home Affairs through a PAIA (Promotion of Access to Information Act) and say that they suspect this person, then we will investigate,” he said.
He said if investigations uncover that the parents acquired citizenship fraudulently, it could be revoked from both the parents and the child.
Nzuza said they have not received any specific request to investigate the citizenship status of the Miss SA contestant's parents.
What do legal experts say?
Writing on the Public Interest Legal Centre of South Africa (PILS), Lawyers for Human Rights explained that being born in South Africa does not automatically confer citizenship.
“People automatically qualify for South African citizenship only if they were born in South Africa and at least one of your parents was a South African citizen or holder of a permanent resident’s permit, or if you were adopted by a South African citizen.”
Additionally, Taryn York and Thato Makoaba, associates in employment law at Cliffe Dekker Hofmeyr (CDH) Incorporated, a full-service law firm, said that if an immigrant gives birth in South Africa while holding a work visa and the mother holds a visitor's visa, and applies for a birth certificate for the child while they are not permanent residents, the child will only receive an unabridged birth certificate, which does not confer citizenship.
They said this would allow their children to return to their home country where they could be issued with birth certificates.
York and Makoaba said dissatisfied parents had recourse to file a review application under the Promotion of Administrative Justice Act 3 of 2000.
The High Court would required to determine the following:
– Whether citizenship could be granted to children of persons who were neither South African permanent residents nor citizens;
– Whether the applicants' minor children qualified for South African citizenship by birth in terms of section 2(2) of the Citizenship Act 8 of 1995 (Citizenship Act); and
– Whether the legal status of a parent's admission into South Africa could determine the citizenship of their child under section 2(2) of the Citizenship Act.
In determining these issues, the court would consider section 2(2) of the Citizenship Act which provides that:
"Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (1) shall be a South African citizen by birth if – (a) he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality, and (b) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act 1992".
The law firm said in expanding on section 2(2) of the Citizenship Act, the court will also rule that citizenship in South Africa is either obtained by birth, descent, or naturalisation, “and that the basic principle of South African citizenship is that a child follows the citizenship or nationality of his or her parents”.
IOL