Children born to illegal moms and local dads are SA citizens

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 citizenship 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.”

Automatic

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 unconstitutional.

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,” she said.

“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.”