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[2018] ZAWCHC 153
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F.B and Others v Minister of Home Affairs and Others (11659/2018) [2018] ZAWCHC 153 (12 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 11659/2018
In
the matter between:
F
B
First
Applicant
H
B
Second
Applicant
F
B obo D P
B
Third
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
First
Respondent
THE
DIRECTOR-GENERAL, DEPARTMENT
OF
HOME
AFFAIRS
Second
Respondent
THE
DIRECTOR: BIRTHS, MARRIAGES, DEATH
AND
RECORDS
MANAGEMENT
Third
Respondent
Delivered:
12 November 2018
JUDGMENT
BOQWANA,
J
[1]
The applicants brought an application seeking an order
declaring that D P B, born on 26 April 2011, is a South African
citizen by
birth, and directing that he be issued with an unabridged
electronic birth certificate in terms of section 9 of the Births and
Deaths Registration Act 51 of 1992 (‘
Births and Deaths
Registration Act&rsquo
;) by the second respondent.
[2]
The first and second applicants are married and both holders
of South African permanent residence permits, having been awarded
these
on 14 December 2010. They are D’s parents and
reside with him in the Western Cape.
[3]
They attempted to apply for a birth certificate reflecting D’s
status as a South African citizen, first at the Paarl Department
of
Home Affairs (“the Department”) and later at the Caledon
office.
[4]
D’s birth was registered within the 30 day period as
prescribed in the Paarl office. There they were issued with a
handwritten
birth certificate which, according to the applicants, is
provided to children whose details are not included in the National
Population
Register (“NPR”), for instance children whose
parents are holders of temporary residence holders. The
applicants
contend that D is a South African citizen by birth, but
his handwritten birth certificate does not contain an identity
number.
[5]
The issue in contention, as appearing on the papers, was
initially around the interpretation of section 2 of the South African
Citizenship
Act No. 88 of 1995 (‘the Citizenship Act’)
before it was amended by the South African Citizenship Amendment Act
No.
17 of 2010 (‘the Amendment Act’), which came into
operation on 1 January 2013.
[6]
Section 2, before its amendment, provided as follows:
“
2.
Citizenship by birth - (1) Any person –
(a)
who immediately prior to the date of commencement of this Act, was a
South African citizen by birth; or
(b)
who is born in the Republic on or after the date of commencement
of this Act
; or
(c)
who is by virtue of section 3(1)(b) a South African citizen, and one
of his or her parents or his or her mother if he or she
was born out
of wedlock, was at the time of such person’s birth –
(i) in the service
of the Government of the Republic; or
(ii) the
representative or the employee of a person or an association of
persons resident or established in the Republic; or
(iii) in the
service of an international organisation of which the Government of
the Republic was then a member,
shall, subject to
the provisions of subsections (2) and (3), be a South African citizen
by birth.
(2)
No person
shall be a South African citizen by virtue of subsection (1)(b) if,
at the time of his or her birth, one of his or her parents
–
(a)
was a person enjoying diplomatic immunity in the Republic in terms of
any law relating to diplomatic privileges, or was a career
representative of the government of another country, or was a person
employed in the embassy or legation of such a government or
in the
office of such a career representative, or was a member of the
household or an employee of any such person; or
(b)
had not been lawfully admitted to the Republic for permanent
residence therein, and his or her other parent was not a South
African
citizen
.” (Own emphasis)
[7]
As appearing in the answering affidavit, the respondents
initially contended that the application was premature. This
issue
was not argued at all. They then raised a second defence
dealing with their interpretation of section 2, quoted above. Whilst
the deponent to the answering affidavit seemed to suggest that the
Amendment Act was applicable to the proceedings at one point,
he went
on to outline the requirements applicable in the Citizenship Act
prior to its amendment, and placed the following interpretation
to
it:
“
23.1 First,
of D’s parents, one of them must have been lawfully admitted
to South Africa for permanent residence
. The First and
Second Applicants, who are D’s parents, were issued with
permanent residence permits on 14 December
2010.
Accordingly,
the requirement that one of D’s parents had been lawfully
admitted to the Republic for permanent residence is
met
.
23.2
Second, D’s
other parent must be a South African citizen.
As stated
hereinabove, the First and Second Applicants, who are D’s
parents, are both permanent residence permit holders.
The First
Applicant is a Dutch citizen born in Netherlands and the Second
Applicant is an Indonesian citizen born in Indonesia.
Accordingly, none of D’s parents are South African citizen
and thus this requirement is absent
.” (Own emphasis)
[8]
The respondents accordingly held the view that D is not a
South African citizen, as contemplated by the old section 2(1)(b) of
the
Citizenship Act read with section 2(2). They held that D
would have qualified for citizenship by birth if, for example, at
the
time of his birth in South Africa, the first applicant was a
permanent resident permit holder and the second applicant a South
African citizen, but found that not to be the position.
[9]
The respondents further alleged that D might have been
eligible to qualify for South African citizenship by birth by virtue
of section
2(4), however, he was seemingly not eligible for that
because he is a Dutch citizen by virtue of his father’s Dutch
citizenship
at the time of his birth. According to the
respondents Dj’s birth is also registered with the Embassy of
the Kingdom
of Netherlands and he has been issued with a Dutch
passport.
[10]
Despite what is contained in the answering affidavit, the
respondents have since made common cause with the applicants’
argument
with regard to the applicants’ interpretation of
section 2 of the Citizenship Act (pre-amendment). The new
position
advanced on behalf of the respondents in argument, is that
the amended provision which became effective in January 2013
retrospectively
applies to D.
[11]
Section 2 of the current Citizenship Act (the new provision)
reads as follows:
“
2.
Citizenship by birth -
Any person –
(a) who immediately
prior to the date of commencement of the South African Citizenship
Amendment Act, 2010 was a South African by
birth; or
(b)
who is born
in or outside the Republic, one of his or her parents, at the time of
his or her birth being a South African citizen
,
shall be a South
African by birth
.” (Own emphasis)
[12]
If the new provision were to apply, it is common cause that D
would not be able to attain citizenship by birth, as neither of his
parents were South African citizens at the time of his birth.
[13]
Both counsel provided me with writings dealing with the issues
of citizenship by birth. In an article titled
The Child’s
Right to a Nationality and the Acquisition of Citizenship in South
Africa Law
(1998) 14 SAJHR 411, at 418, Raylene Keightley
observes that although the qualification in section 2(2)(b) of the
old provision:
“
. . .is
clearly intended to limit the right to claim citizenship based on
birth, its actual effect is unfortunately less clear.
The use
of the triple negative in the language of the provision (‘No
person … had not been … or was not …’)
makes it difficult to understand its positive application,
particularly where a child has a parent who has been admitted to
South
Africa for permanent residence. The subsection does not
expressly deal with this situation and the question is whether the
limitation contained in subsection 2(2) applies? A careful
reading of the subsection suggests that the limitation comes into
play as soon as a child has a non-citizen parent who has not been
admitted for permanent residence. Such a child will only
have a
claim to citizenship by birth if the other parent is a citizen.
Even if one parent has been admitted for permanent
residence, as long
as the other has not (and is not a citizen), then the limitation
applies and the child will have no claim to
citizenship based on
birth. It is only if both parents have been admitted as
permanent residents that a child born in South
African of
non-citizenship parents will be a citizen. Of course, if one of
the parties is in fact a citizen then the status
of the other parent,
whether admitted as a permanent resident, or as a temporary resident
or even an illegal immigrant, is immaterial.”
[14]
This view makes sense to me, the negative reading of the
section in question connotes a disqualification as opposed to a
qualification.
In other words, one is disqualified from
obtaining citizenship by birth, although born in South Africa, if one
of the parents does
not have permanent residence, and the other one
is (under those circumstances) not a South African citizen
Therefore if one
parent is unlawfully present in the Republic, the
child will be “saved” by the other being a citizen.
If these
limitations are not present then a person born in South
Africa should qualify, such as in this case. Here, none of the
parents
are persons who “
have not been lawfully admitted to
the Republic for permanent residence
” and therefore the
saving cushion of the other being a South African citizen is not
required in this case.
[15]
Indeed as agreed by both parties in argument, on that
interpretation, a person born in South Africa, whose parents have
been lawfully
admitted to the Republic for permanent residence should
acquire citizenship by birth.
[16]
Now that the interpretation of the old provision is no longer
an issue, I turn to deal with the issue of whether the amended
provision
applies to D retrospectively.
[17]
The respondents relied on the judgment of
Ali and Others v
Minister of Home Affairs and Another
2018 (1) SA 633 (WCC) by
Wille AJ (as he then was) to support this proportion.
[18]
In the
Ali
matter, the Court dealt with a situation
where the respondents had refused to grant applicants citizenship in
terms of section
4(3) of the Amendment Act. There, the
respondents had argued that section 4(3) did not apply to persons who
were born before
1 January 2013 (i.e. contending that that section
could not be retrospectively applied).
[19]
Acknowledging the reluctance of the Courts to interpret
legislation as applying retrospectively, because of the danger of
interfering
with vested rights, the Court found that the applicants
did not wish to take away vested rights or create new obligations,
they
simply maintained that they were eligible for the benefits which
the new section 4(3) conferred when it came into operation.
In
other words they met its requirements. Therefore, the
applicants were not calling for the amended section to be
retrospectively
applied.
[20]
The
Ali
case does not find application is the present
case. Clearly if the amended provision was to apply to D, who
was born before
it came into operation, it would interfere with
vested rights (i.e. rights that D acquired under the old provision
operative when
he was born). The respondents could not persuade
the Court as to the basis upon which the new provision could be said
to
be applicable to D’s situation. The retrospective
application of the current provision to D is therefore not
sustainable.
In any event, this issue was not particularly
raised in the answering affidavit and its premise canvassed. I
deal with it
for completeness.
[21]
It follows therefore that the arguments proffered by the
respondents, in refusing to acknowledge that D is a South African
citizen
and to grant him the necessary documentation, are untenable.
[22]
I was also directed to the matter of
FK Mulowayi and Others
v Minister of Home Affairs and Other
s, case number 13550/2017,
delivered on 5 June 2018, where Allie J, made a remark in passing
that confirmed the applicants’
interpretation of section 2(2)
of the Citizenship Act, pre-amendment, at paragraph 21 of her
judgment. In that case, the
Director-General had apparently
conceded that Mr Mulowayi’s eldest child was in fact a citizen
by birth. This is where
both parents had been granted permanent
residence at the time of their eldest son’s birth in April
2011.
[23]
Turning to the issue of costs. The applicants pray for
costs on the scale as between attorney and client. They contend
that after the service of the replying affidavit, it should have been
clear to the respondents that their opposition had no merit.
The respondents conceded the interpretation advanced by the
applicants in argument and went on to change their position. Their
conduct, it is argued, is inexplicable and warrants a punitive cost
order.
[24]
Whilst concessions have been made on the interpretation point,
it cannot be said that persistence with opposition was motivated by
any malice. Whilst the issue of interpretation has now
crystallised, this case is by no means straightforward. I do
accept that the issue of “retrospectivity” was not
properly raised in the answering affidavit, and the averments thereto
appear to be inconsistent. The articulation of the issues by
the respondents and their persistence in opposing the relief
sought
by the applicants could not be attributed to bad motive or
dubiousness, but possibly to a mistaken belief as to the law
or even
genuine difficultly in locating the provisions discussed in this
case. I accept there is vacillation between positions,
but I do
not think that a punitive cost order should be granted against them.
[25]
In conclusion, D’s parents have waited for too long to
get their son’s rights protected. The respondents must
ensure that the birth certificate and other documentation or
registration afforded citizens is afforded to D as expeditiously as
possible. Counsel for the applicants requested the Court to
make an order that the third respondent be served with a copy
of this
judgment to ensure expedited processing of the order. I have no
difficulty with that and there was no objection to
that effect from
the respondents. I do think that the respondents should be
given longer than the seven days asked for by
the applicants, in
which to issue the relevant documentation in respect of D.
[26]
In the circumstances, the following order is made:
1. It is declared
that D P B (Date of birth: 26 April 2011) is a South African citizen
by birth.
2. The second
respondent is directed to issue an unabridged electronic birth
certificate in terms of
section 9
of the
Births and Deaths
Registration Act, No. 51 of 1992
, at the Caledon office of the
Department of Home Affairs within ten (10) days of the order of this
Court in respect of D P B, such
birth certificate to include the
identity number of the first and second applicants and the identity
number issued by the second
respondent to D P B.
3. The respondents
are to pay cost of the applicants.
4. A copy of this
judgment must be served on the third respondent by the Sheriff for
the expedited processing of this order.
______________________
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For
the Applicants: Adv. L. de la Hunt
Instructed
by: Eisenberg & Associates, Cape Town
For
the Respondents: Adv. R. Matsala
Instructed
by: State Attorney, Cape Town