refugee status South Africa

The Constitutional Court has upheld a decision that people born in SA to foreign parents can apply for citizenship.
Photo: Ashraf Hendricks

ConCourt rules people born to foreign parents can apply for citizenship

The decision is the latest victory for five claimants against the Department of Home Affairs.

refugee status South Africa

The Constitutional Court has upheld a decision that people born in SA to foreign parents can apply for citizenship.
Photo: Ashraf Hendricks

The Constitutional Court has ruled that people born in South Africa to non-South African parents can apply for citizenship. 

The Department of Home Affairs had challenged a court application brought to the mightiest court in the land by a group of five adults, who were bidding to have their applications for citizenship considered by the department.

The precedent-setting ruling means that people born in South Africa to foreign parents will no longer be considered to be ineligible for citizenship because the process results in “an unnecessary flow of applications and burden the already strained resources of the department”.

Those applications, no matter how laborious the department deems them, must be considered in terms of the Citizenship Amendment Act, which came into effect in January 2013.

In terms of that order, Home Affairs Minister Aaron Motsoaledi must accept their applications for citizenship and make a decision within 10 days.

Drawn-out court saga

The scoreline now reads “foreigners-applying-citizenship three, Aaron Motsoaledi nil”.

The five claimants had previously won their battle at the Western Cape High Court where Motsoaledi first argued that they did not fall under the terms of the amended Act because they were not born after 2013. He suggested that the Act could not be applied retrospectively. 

The case was taken on appeal to the Supreme Court, where the group again were deemed to have been treated unfairly by Home Affairs. The judge ruled that the Western Cape’s decision should stand. 

But that didn’t stop the department from taking one last bite at the cherry and referring the matter to the Constitutional Court.

What happens next?

Sherylle Dass, regional director of the  Legal Resources Centre (LRC), which assisted the five claimants in their case, said the decision was long overdue.

“Following the dismissal of their appeal, we will now be demanding the adjudication of those citizenship applications and we will approach the courts if necessary, should a decision not be made within 10 days, in accordance with the SCA ruling.

“Our clients have had to endure a long and painful journey to obtain citizenship, with some of them all but giving up hope of being finally accepted by a country they have grown to love – the only country they have called home.

“A large part of this agonising journey could have been avoided if decision makers within the department of home affairs exercised reason and caution by not arbitrarily abusing the court processes to delay and frustrate the exercise of the clear and unequivocal right of these applicants.”