Children born in South Africa to foreign parents not automatically entitled to SA citizenship, says court

A court has said that children born in South Africa to foreign national parents are not automatically entitled to South African citizenship. Picture: File

A court has said that children born in South Africa to foreign national parents are not automatically entitled to South African citizenship. Picture: File

Published Sep 5, 2023


Pretoria - A court has found that children born in South Africa to foreign national parents do not automatically entitle them to South African citizenship.

The court then turned down an application by Zimbabwean parents for their children to be issued with SA birth certificates.

The parents had turned to the Polokwane High Court to review and set aside a decision by the department of home affairs, which refused to issue the three children with birth certificates.

The argument by the parents was that the department’s refusal was unlawful, unconstitutional and invalid.

The parents are Zimbabwean citizens currently staying in South Africa. They have three children who were born between 2010 and 2016.

All their children were given unabridged certificates for non-Citizens. The father said he was in South Africa on a work permit and the children’s mother was his partner.

The parents had approached the department to apply for a South African birth certificate for each of the children. Their application was prompted by the fact the children were all born in South Africa and didn’t have Zimbabwean citizenship or nationality.

They were told the only assistance they could get from the department was to be issued with unabridged birth certificates for non-South African citizens for their children in order for them to go to Zimbabwe so that the authorities there could issue them with Zimbabwean birth certificates.

The father said since he worked in South Africa and the children were born here, they were entitled to South African citizenship.

The parents claimed to be holders of work and visitor’s permits and all their children were born in south Africa while they as parents held such permits.

The department said it was difficult to issue a South African birth certificate for citizenship where grounds for citizens has not been established, as in this case, in terms of either birth or naturalisation.

Children born of permanent residents follow their parent’s status, the department said, adding the applicants were from Zimbabwe and had not renounced their citizenship.

Dual citizenship is prohibited in law and as such the applicant’s children are Zimbabwean citizens.

The department also said citizenship could not be conferred on children of permit holders for work approved for that purposes, or for study or holiday purposes.

Its stance is that the notification of birth can be taken to the parents’ country of origin, which is Zimbabwe, for registration and issuing of passports.

The court was told that despite the special permit dispensation extended to Zimbabwean nationals over some time, some parents had failed to regularise their stay and thus disadvantage their children.

The parents in this case failed to safeguard their children’s identity and nationality because they might be in the country illegally for the possibility of expired permits.

Not every person is in South Africa with an intention of staying, the department argued.

It further held the parents had failed to elevate their status to that of residence and, as a result, it was doubtful that having arrived in the early 2000s, they remained permit holders.

The department asked the court to note the Constitutional Court’s findings earlier that citizenship was not just a legal status, but it went to the core of a person’s identity and their sense of belonging.

The court said the basic principle of South African citizenship was that a child followed the citizenship or nationality of his or her parents.

If one parent was a South African citizen, the child would be a citizen by birth.

The court turned down the application and said it’s best to register the children in Zimbabwe.

Pretoria News