South African citizenship is not an automatic right for the children of Non-South African citizens - even if they were born in South Africa!

The applicants in this case were both adult Zimbabwean citizens who were residing in South Africa and were the parents of three minor children who were born in South Africa between 2010 and 2016. Whilst the applicants were residing in South Africa, they were not permanent residents. The applicants were allegedly in possession of a work visa and visitor's visa, respectively. Upon birth, the applicants applied for their children to be issued with birth certificates for South African citizens on the basis that they were born in South Africa, and as they did not have Zimbabwean citizenship or nationality. Notwithstanding their application, their children could only be issued with unabridged birth certificates for non-citizenship. This would allow their children to return to Zimbabwe, for them to be issued with Zimbabwean birth certificates.

Unsatisfied with this decision, the applicants instituted a review application in terms of the Promotion of Administrative Justice Act 3 of 2000, to set aside the Minister's decision not to issue their children with South African birth certificates, and consequently not conferring them with South African citizenship. The applicants' challenge was primarily based on their children being born in South Africa. The applicants argued that their application gave rise to constitutional issues in relation to the right to fair administrative action, which is enshrined in section 33 of the Constitution of the Republic of South Africa.

The High Court was accordingly required to determine –

• Whether citizenship could be granted to children of persons who were neither South African permanent residents nor citizens;
• Whether the applicants' minor children qualified for South African citizenship by birth in terms of section 2(2) of the Citizenship Act 8 of 1995 (Citizenship Act); and
• Whether the legal status of parent's admission into South Africa could determine the citizenship of their child under section 2(2) of the Citizenship Act.

In determining these issues, the court considered section 2(2) of the Citizenship Act which provides that "Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (1) shall be a South African citizen by birth if – (a) he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and (b) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act 1992".

In expanding on section 2(2) of the Citizenship Act, the court confirmed that citizenship in South African is either obtained by birth, descent, or naturalization, and that the basic principle of South African citizenship is that a child follows the citizenship or nationality of his or her parents.

The court considered and emphasised that the best interests of the applicants' minor children are of paramount importance, and that it would not be in their interests to be separated from their parents. The court accordingly held that the applicants' children had Zimbabwean citizenship by virtue of them being Zimbabwean citizens, who had not renounced their Zimbabwean citizenship. This principal is founded on the basis that children inherit the status of their parents to avoid separating them from their parents. As such, the mere fact that the children were born in South Africa did not mean that they had abandoned their parent's country of citizenship or nationality.

Interestingly, the court held that in such a case, the applicants desire for their children to be regarded as South African citizens would be akin to an inter-country adoption for the purposes of the Hague Convention on International Country Adoption. This point was founded on the fact that the applicants would retain their Zimbabwean citizenship while conferring South African citizenship on their children, and as such, the applicants would have parental rights and responsibilities towards children of a different country.

The court did however offer alternative recourse to the applicants in that nothing prohibited their children from obtaining South African citizenship by birth in terms of section 3 of the Citizenship Act if they met the applicable requirements. This section provides that: the parents of Non-South African citizens would have to be permanent residents in South Africa; and their children would have to reside in South Africa from the date of their birth to the date of attaining majority, in order to obtain citizenship by birth.

The most important takeaway from this judgment is the weight placed on the best interests of children, and that it cannot be said to be in their interests to be separated from their parents, notwithstanding the place of their birth. Parents who find themselves in similar circumstances are reminded that whilst their children would not automatically attain South African citizenship by being born in South Africa, they are not precluded from doing so at a later stage if they follow the correct procedure in terms of section 3 of the Citizenship Act.