Court order on citizenship affects many

DOORS will open for a desperate little boy who was born in Lesotho after the Grahamstown High Court ordered the Home Affairs Department to grant him South African citizenship.

Home Affairs refused to register little Xolani (not his real name) as a South African citizen, although he has a South African father.

Xolani was born in Lesotho, where his mother is a citizen. The court has ordered that neither the little boy nor his family may be identified.

The case, which the Legal Resources Centre (LRC) in Grahamstown was instrumental in bringing, is an interesting one as it was brought not just on the family’s behalf, but also for all parents or guardians in a similar position.

In a broad order, the Grahamstown High Court has instructed that any child born outside South Africa but who has a South African parent is a South African citizen by birth in terms of the Citizenship Act, regardless of the citizenship of the other parent.

This means Xolani, who is now eight years old and finally a South African citizen, can access a subsidised education, healthcare and access to social assistance, such as a child-care grant.

According to court papers, the little boy moved to Port Elizabeth shortly after his birth to be with his father, as his mother was financially unable to care for him in Lesotho. His father also lacks what he termed “financial muscle” and required assistance in terms of social grants and access to a basic education for his son.

But Home Affairs refused to register his birth or grant him citizenship, saying he was only entitled to permanent residency.

The case is one of many in which the LRC is focusing on the implications of South African children being denied access to various benefits because their births were never registered.

In another matter, the Grahamstown LRC, Phakamisa High School in Port Elizabeth, together with the Centre for Child Law, have challenged the Eastern Cape education department’s decision to stop funding school pupils who do not have a South African identity number.

The LRC says an announcement was made in March last year that funding schools for everything from teacher salaries to the National School Nutrition Programme and textbooks would be based on pupil numbers. Only pupils with South African identities, passports and permit numbers captured in the SA Schools Administration and Management System would count. Dozens of schools with children whose births were not registered have been affected.

The LRC will argue that this is a violation of the children’s constitutional rights to basic education, dignity, equality, nutrition and non-discrimination.