Shrinking South Africa: Hidden Agendas in South African Citizenship Practice

ABSTRACT

The 1995 South African Citizenship Act in conjunction with s3 of the South African Constitution enshrined a free and equal Citizenship for all South Africans. The initial legislation inclined toward the inclusive, allowing dual citizenship and a number of other exceptions to reintegrate those who had lost citizenship under the Apartheid Regime. This paper argues that since 1995 there has been a slow but steady move to restrict access to citizenship through the legislative amendments of 2004, 2007 and 2010 and the Department of Home Affairs’ unduly restrictive interpretations of the law in formal regulations and policies. The evidence suggests an agenda of ‘shrinking the state’ or, at the very least, an inclination to keep South Africa for South Africans. The paper argues that, as citizens, we ought to keep a sharp eye on this trend and respond to its political nature through political channels.

Acknowledgement

The empirical research that inspired this analysis was first produced in my role as a ‘Citizenship Expert for South Africa’ for GlobalCit, a project of the Robert Schuman Centre, European University Institute. I am grateful for their support during this project's original stages. Thanks are also owed to Laurence Piper for his helpful comments on an early draft and the audience at the South Africa Association for Political Studies 2018 conference.

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Christine Hobden http://orcid.org/0000-0002-2061-8727

Notes

1 This article is analysis based upon a report written by the author: ‘Report on Citizenship Law: South Africa.’ (2018) RSCAS/GLOBALCIT-CR 2018/1 February 2018. Please see the report for a more detailed exposition of past and present citizenship law in South Africa.

2 This acronym will be used throughout to refer to the South African Citizenship Act of 1995 (Act 88 of 1995), as amended (with amendments indicated by the addition of the relevant date).

3 In total the Act repealed, in whole or in part, 25 pieces of legislation (Klaaren 2010, 234).

4 See Klaaren (2000, 235–241), for an extensive discussion of the parliamentary debates surrounding this issue.

5 The original Act deemed a person born outside the country to at least one parent who was a South African citizen to be a citizen by descent §3(1)(b).

6 Note that, as of 2005, the age of majority is 18, as amended from 21 by the Children’s Act (No. 38 of 2005).

7 Lawyers for Human Rights details a number of cases where a lack of a birth certificate prevents children from attending school (LHR 2017).

8 See ‘Exacerbating Factors’ for discussions on the challenges to making use of this provision.

9 For an extensive discussion of the parliamentary debate around this issue, see Klaaren (2000). Klaaren suggests that ‘the debate over the dual citizenship issue was scattered to the point of confusion’ (p. 238).

10 See Klaaren (2000) for the argument that this provision was established on principles of jus soli, suggesting South Africa relies on jus soli to a greater extent than many other states (230, ftnt 49).

11 Cuba has very strict citizenship laws: Cuba does not allow children to obtain citizenship by birth if they are born outside Cuba to parents who are considered permanent immigrants (a status which is acquired after only 11 months) (Evans 2016).

12 The Department settled after initially applying for leave to appeal the Pretoria High Court decision DGLR & KMRG v Minister of Home Affairs and Others (38429/13) GNP [2015] (Motajane).

13 Minister of Home Affairs v Ali (1289/17) [2018] ZASCA 169 (30 November 2018) (Mathopo).

14 For more detailed explanations of a number of problem cases, see ‘Childhood Statelessness in South Africa’ (LHR 2016).

15 Note two recent developments. On the one hand, a 2018 judgement in the Grahamstown High Court, Naki and Others v Director General: Department of Home Affairs and Another (Case No 4996/2016) has declared Regulation 12 unconstitutional. This case is currently under appeal to ensure both the regulations (Regulation 12) and the Act (§10) allow for a father to be the sole parent present for registration (LHR 2018). On the other hand, in November 2018, the Department of Home Affairs released the proposed new regulations to the BDRA which intend to discontinue the issuing of birth certificates to foreign children altogether. Instead non-citizen parents would be required to register their children's births at their embassies. It is not clear yet what implications this would have for the SACA, should the new regulations be instated.

16 Chapter 2, Section 36 of the Constitution provides that

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors

17 Chris Hani was the leader of the South African Communist Party and Chief of Staff of the ANC's armed wing Umkhonto we Sizwe. He was assassinated in April 1993, in an act that many feared would completely derail the on-going CODESA negotiations.

18 For example, see comments by Mangosotho Buthelezi (previously Home Affairs Minister) on competing for resources with ‘millions of aliens’ and the criminality of Nigerians (Neocosmos 2008, 588).

19 Recall earlier discussions of DGLR & KMRG v Minister of Home Affairs and Others (38429/13) GNP [2015] (Motajane); and Minister of Home Affairs v Ali (1289/17) [2018] ZASCA 169 (30 November 2018) (Mathopo).