1. The South African Constitutional Court Decides Against Statelessness and in Favour of Children
- Author:
- Mihloti Basil Sherinda and Jonathan Klaaren
- Publication Date:
- 07-2022
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- Shrinking citizenship is of great concern for those facing the prospect of reduction in citizenship statuses,not from two to one but from some to none—ieto the status of statelessness. Research in South Africa has only recently begun to pay increased attention to the problem of childhood statelessness, itself only seeing sustained interest at the global level for just over a decade.39The DHA does not keep official statistics on statelessness, not mentioning the topic in its annual reports through 2015.40In 2017, one of the leading NGOs addressing the issue provided legal assistance to 92 children (half born in South Africa) with problems of statelessness or at risk of statelessness.41Following a wider human rights definition,rather than the narrower UNHCR approach, South African legislation is mostly in line with international legal standards on the prevention and reduction of statelessness, including for children.42However, the implementation of those laws leaves much to be desired due to the DHA’s tendency to support restrictive interpretations of the provisions in its regulations and policies.43Chisuseclarifies the principle of the statutory interpretive presumption against retrospectivity and its application to legislation in a complex regulatory framework,which could also beinterpreted to extinguish existing citizenship rights. When read in its fullness, the historical approach adopted by the Constitutional Court led to a persuasive decision, handing success to public interest litigants acting on behalf of those faced with adegree of statelessness. Especially when seen in the context of a shrinking bureaucratic regard for citizenship applicants, the Constitutional Court continues to place itself at the centre of the rights-regarding movement within South African citizenship law.44The decision confirms the trend in childhood statelessness cases wherein the lower courts have found against the DHA,45including that of a child born to two Cuban parents where Cuba refused to extend citizenship to the child (instructing the DHA toissue citizenship to the child); a child born to refugees and reaching the age of 18(holding that the DHA’s delay in formulating guidelines for applications was not a sufficient basis to deny children the opportunity for naturalisation); and children with an unmarried South African father and a foreign national mother (ruling that the children should be properly registered so that they could access South African citizenship)
- Topic:
- Children, Citizenship, Courts, and Stateless Population
- Political Geography:
- Africa and South Africa