Children born to illegal moms and local dads are SA citizens

Source: The Star, 13/07/2018

Johannesburg - Home Affairs has been ¬accused of violating human
rights after refusing to grant citizenship to children born to
undocumented mothers, but whose fathers are South African. In a
scathing judgment delivered at the North Gauteng High Court, Acting
Judge Moses Mphaga has ordered the department to “forthwith register
the birth” of a 4-year-old child of a Joburg father and a ¬Chinese
female immigrant whose stay in the country is illegal.
The boy was born at Flora Clinic, near Roodepoort, in 2013. After his
birth, Home Affairs officials told the parents that his birth would
not be registered due to the mother’s illegal status.
The parents, whose attempts to marry were also barred by Home Affairs,
¬believed there was no reason for the department to deny their child
citi¬zenship because he was born in South Africa, and one parent was a
citizen. Judge Mphaga found that the department relied on an “internal
policy” adopted in 2014 to block the registration of children born out
of such relationships.
“The practical effect of this policy is to refuse the child the
recognition as a South African citizen, to which he is entitled as a
right,” Judge Mphaga wrote in the judgment. In its opposing affidavit,
the department had sought to defend the policy.
It said: “When the mother of a child born in South Africa is an
illegal refugee or illegal immigrant, the child will only be issued
with a handwritten recognition of birth certificate, as the child is
not a South African citizen.
“When one of the parents is an illegal refugee or illegal immigrant,
the child cannot be registered on the Birth Registry, as the system
would then automatically issue the child with a South African identity
number which it (sic) does not meet the requirements.”
Judge Mphaga said this policy contradicted a section of the
Citizenship Act that grants automatic citizenship to children born in
or outside the country to parents of whom one is South African.
“Accordingly there can be no valid reason for the department to rely
on an internal policy which effectively refuses to recognise the South
African citizenship of the applicants’ child,” he said.
This was a second ruling within two weeks against Home Affairs for
denying citizenship to children of local men and undocumented
¬mothers. In a judgment delivered at the High Court in Grahamstown, in
the Eastern Cape, Acting Judge Apla Bodlani ruled in favour of a
defence force member and his Congolese wife.
They fell in love while the soldier was posted to the Democratic
Republic of Congo (DRC), and had a customary marriage in that country.
“In September 2015, the wife travelled to South Africa on a DRC
passport, having been issued, on September 23, 2015, with a visitor’s
visa. At the time of expiration of her visa, she was highly pregnant,
and thus could not apply for a new visa, in as much as she could not
travel back to the DRC,” Judge Bodlani pointed out in his judgment.
But Home Affairs refused to register the child. Judge Bodlani declared
the 2014 regulation of the ¬department unconstitu¬tional. Liesl
Muller, a lawyer with Lawyers for Human Rights, said dozens of
children in similar situations across the country had become stateless.
“Last year I visited Aliwal North, and found about 70 children who did
not have birth certificates. In our law clinic every day I see (South
African) fathers who want to take responsibility for their children,
but Home Affairs won’t let them,” she said.