A stateless child minor child born to Rwandan refugees has been declared a citizen of South Africa by the Gauteng High Court in Pretoria.
The case was brought forward by the child’s parents, who have been legally recognised as refugees in South Africa since 2011. They sought recognition for their youngest daughter, born in 2015, who was rendered stateless due to amendments in the Citizenship Act affecting children born after 1 January 2013.
Prior to 2013, South African law permitted children born within the country to acquire citizenship if at least one parent held permanent resident status at the time of birth. However, legislative changes in 2013 restricted citizenship by birth to cases where at least one parent was a South African citizen, leaving the little girl and many others in legal limbo.
When the Directorate General of the Department of Home Affairs rejected the citizenship request for their child, it was argued that granting the application would exceed legal authority. However, the High Court found this refusal unlawful, citing the paramount nature of the child's best interests, a principle deeply embedded in South African law.
In his ruling, Judge A Millar emphasised the child’s birth in South Africa, her properly registered birth certificate, and most significantly, her lack of any other citizenship. The decision demonstrates South Africa's commitment to preventing statelessness, aligning with international legal principles despite the country's limited formal treaty obligations regarding stateless persons.
The court acknowledged the complex situation of the parents who, as refugees, cannot approach Rwandan authorities for their child's documentation without risking their protected status. This created an untenable situation where their elder daughter, a South African citizen, enjoyed rights denied to her younger sibling solely due to the timing of her birth.
Judge Millar said in the ruling, "Having a right without being able to exercise that right leaves a person with no right at all." The ruling compels the Department of Home Affairs to register as a South African citizen within three months and orders the state to cover the application costs.
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