The high court has rejected an application by Zimbabwean parents, who are beneficiaries of the Zimbabwean Exemption Permit (ZEP) regime, to have their three SA-born children recognised as SA citizens.
The parents had challenged the department of home affairs’ refusal to issue birth certificates for the children, but the Polokwane high court said the parents had “failed to safeguard their children’s identity and nationality”.
The parents are still entitled to register the births in SA but the registrations must be used to obtain Zimbabwean birth certificates, according to a legal expert.
Background
The parents, who live in a Limpopo village, have three children who were born in SA between 2010 and 2016.
The parents applied at their local Home Affairs office for SA birth certificates as the family had not returned to Zimbabwe. The children did not have Zimbabwean citizenship or nationality.
The parents applied in terms of the relevant law, the Citizenship Act. The Act indicates three grounds which allows children to acquire citizenship when they are born in SA:
- if either parent is a SA citizen;
- if, after registering the birth in SA, the child has no citizenship or nationality (or the right to either) of another country; and
- if the parents have permanent residence, their children can become an SA citizen only if the child’s birth is registered and the child lives in SA from birth until the age of 18.
Home Affairs refused, indicating it could supply only unabridged birth certificates, which would enable Zimbabwean officials to issue birth certificates for the children.
Home Affairs said it could not issue birth certificates for SA citizenship because the parents did not meet any of the three requirements under the Act. The parents hadn’t renounced their Zimbabwean citizenship, neither had they met the requirements for permanent residence, it said.
The high court’s refusal
Acting judge Thandi Makweya noted that the children “do have citizenship and/or nationality of a country as their parents are of Zimbabwean nationality”.
Makweya acknowledged the children’s safety is the court’s primary concern. Still, the children’s status “cannot be separately assessed without looking into the status of their parents as Zimbabweans”. Just because the children “were born in SA does not mean that they abandon their parent’s country”.
Makweya also expressed concern that a purported work permit wasn’t presented to the court. “The court as it stands does not know if the applicant is indeed on work permit or not,” she said.
“If indeed the applicants wants their children to have SA citizenship, the law does not bar them from doing so,” she added, noting the parents could obtain permanent residence and apply on that ground.
Makweya said the case was “bad in law”, since, if granted, it would “separate the children from their natural parents”, since the parents would otherwise have no legal basis to remain in SA come the end of the ZEP regime or purported “work permit”.
Thandeka Chauke, head of the statelessness project at Lawyers for Human Rights, said the judgment was correct in law. However, the children are still entitled to a so-called handwritten birth certificate.
“It is essential not to conflate birth registration with citizenship,” Chauke said. “In the SA context, a child’s citizenship generally depends on the citizenship of their parents. Children born to foreign nationals must approach the consulate of their parents’ country of citizenship to apply for an official birth certificate.” This is where parents will present the handwritten birth certificate.
Makweya noted in her judgment that Home Affairs had given that advice to the parents from the outset.
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