In a landmark decision, a court has ruled that children born in South Africa to foreign national parents are not automatically entitled to South African citizenship. This decision came after the court rejected an application by Zimbabwean parents who sought South African birth certificates for their children.
The parents, Zimbabwean citizens residing in South Africa, approached the Polokwane High Court to review and overturn a decision by the Department of Home Affairs. The department had previously denied issuing birth certificates to their three children, born between 2010 and 2016 in South Africa.
The parents’ contention was that the department’s refusal was “unlawful, unconstitutional, and invalid.” They argued that since all their children were born in South Africa and did not possess Zimbabwean citizenship or nationality, they should be granted South African citizenship. The father, who is in South Africa on a work permit, stated, “Since I worked in South Africa and the children were born here, they were entitled to South African citizenship.”
However, the Department of Home Affairs presented a different perspective. They highlighted the challenges of issuing a South African birth certificate for citizenship when grounds for citizenship, either by birth or naturalization, had not been established. The department further explained that children born of permanent residents inherit their parent’s status. In this case, the parents, being from Zimbabwe and not having renounced their Zimbabwean citizenship, meant that dual citizenship would be in violation of the law. Thus, the children were deemed Zimbabwean citizens.
The department also pointed out that citizenship could not be given to children of individuals holding permits for work, study, or holiday purposes. Their stance was clear: the birth notification could be taken to the parent’s country of origin, in this case, Zimbabwe, for registration and the issuance of passports.
The court was informed that despite special permit provisions extended to Zimbabwean nationals, some parents had not regularized their stay, which was potentially disadvantageous to their children. The department argued, “Not every person is in South Africa with an intention of staying.”
The court underscored the Constitutional Court’s earlier findings that citizenship is not merely a legal status but resonates deeply with a person’s identity and sense of belonging. The foundational principle of South African citizenship is that a child inherits the citizenship or nationality of their parents. If one parent is a South African citizen, the child would be considered a citizen by birth.
Concluding the case, the court advised that it would be best for the children to be registered in Zimbabwe.