Xenophobia is alive and well, living in the Department of Home Affairs in Pretoria and secretly engaged to Donald Trump.
On 6 September 2016 the Supreme Court of Appeal (SCA) was set to hear the case of an eight-year-old stateless child born in South Africa who has steadfastly been denied her right to South African citizenship by Home Affairs officials.
The child, referred to only by her initials, DGLR, in court proceedings, has, since birth, clearly been entitled to South African citizenship in terms of Section 2(2) of the Citizenship Act.
But Home Affairs officials brazenly informed Lawyers for Human Rights (LHR), who took up her case in 2013, that they did not intend ever applying that section of the law as “too many children” would qualify.
In May 2014, after five years spent hitting the wall at Home Affairs, the child’s mother applied to the North Gauteng High Court in Pretoria for assistance. The court ordered the department to immediately register the child as a citizen and issue her with an ID number and birth certificate.
The court also ordered Minister Malusi Gigaba to promulgate regulations to Section 2(2) to facilitate its implementation. He has 18 months to comply with the order.
But Home Affairs was still having none of it: they took the high court judgment on appeal – and managed to drag out the appeal process for a further two years.
The department could have been in no doubt that they did not have a legal leg to stand on. Their position could only have been based on the supposition that, if faced with enough bureaucratic hostility, foreigners will succumb and decide to “go back to where they came from”.
In this case the strategy had failed. The child and her mother were supported by Lawyers for Human Rights in opposing the appeal. So on the morning of 6 September, on the steps of the Appeal Court, Home Affairs agreed that the Appeal Court should confirm the high court’s rulings.
DGLR was born in Cape Town in 2008 to Cuban parents. Cuban law does not allow children to obtain Cuban citizenship if they were born outside Cuba to parents who are considered “permanent emigrants” if they have lived outside Cuba for more than 11 months. They had.
South African law as a general rule awards citizenship based on the South African citizenship of the parents. Because DGLR’s parents are Cuban, she was not assumed to be South African. Qualifying for neither citizenship, she was stateless – which brought Section 2(2) of the Citizenship Act into play.
Mercifully, it provides for South African citizenship to be granted to stateless children born in the country.
Regarding themselves as above the law, the department refused to implement the section, leaving DGLR stateless for eight years. Stateless children can never leave South Africa, nor obtain legal status in the country without implementation of Section 2(2).
• The judgment is to be found under reference: Minister of Home Affairs and others v DGLR and another (Case number 1051/2015 SCA). For more information contact Liesl Muller at Lawyers for Human Rights on 083 703 2496.
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