Why merely being born in SA is not enough to obtain citizenship

The mere act of being born in South Africa does not automatically confer citizenship

The citizenship of a child born in South Africa cannot be determined solely by their place of birth. For a child to acquire citizenship by birth, at least one parent must be a South African citizen, naturalized citizen, or permanent resident.

This clarification was provided by Deputy Minister Njabulo Nzuza from the Department of Home Affairs. He emphasized that children born in South Africa to parents who are neither South African citizens nor permanent residents do not automatically qualify for citizenship.

Minister Nzuza's remarks have arisen in the context of recent Afrophobic attacks directed towards Miss SA hopeful Chidimma Adetshina. Born in 2001 in Soweto to a Nigerian father and a South African mother with Mozambican heritage, Adetshina has faced considerable scrutiny on social media regarding her citizenship status; however, she is indeed recognized as a South African citizen.

Nzuza further stated that individuals who hold strong objections against Adetshina or any other citizen may exercise their rights under the Promotion of Access to Information Act (PAIA) to report their suspicions to Home Affairs for investigation purposes. Should these investigations reveal instances where parental citizenship was obtained through fraudulent means, both the parents' and child's citizenship could potentially be revoked.

At present, Nzuza indicated that no specific requests have been received seeking an inquiry into the citizenship status of 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:

The court's deliberations will address several pertinent issues related to South African citizenship, specifically:

1. The possibility of granting citizenship to children of individuals who are neither permanent residents nor citizens of South Africa.
  
2. Whether the minor children of the applicants qualify for South African citizenship by birth as outlined in section 2(2) of the Citizenship Act 8 of 1995 (hereinafter referred to as "the Citizenship Act").
  
3. The extent to which a parent's legal status upon entering South Africa influences their child's eligibility for citizenship under section 2(2) of the Citizenship Act.

In its assessment, the court will take into account section 2(2) of the Citizenship Act, which stipulates that:

"Any person born in the Republic and who is not a South African citizen under subsection (1) shall be deemed a South African citizen by birth if – (a) they do not possess or have rights to any other country’s nationality or citizenship, and (b) their birth is registered within the Republic in accordance with the Births and Deaths Registration Act 1992."

Moreover, elaborating on section 2(2), it has been indicated by legal experts that rulings from this case may affirm that acquisition of South African citizenship occurs through birth, descent, or naturalization. Furthermore, it underscores that a fundamental tenet of South African citizenship law dictates that an individual's nationality typically aligns with that of their parents.