DGLR and Another vs. Minister of Home Affairs and Others

Parties (including notable third parties)

First Appellant: Minister of Home Affairs; Second Appellant: Director‑General, Department of Home Affairs; Third Appellant: Deputy Director‑General for Civic Services; Fourth Appellant: Ronel Kruger, N.O.; First Respondent: D.G.L.R; Second Respondent: K.M.R.G

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Summary of Facts

DGLR was born in South Africa to Cuban parents, disqualifying her from South African citizenship. Her mother, KMRG, was a ‘permanent emigrant’ under Cuban law that disqualified DGLR from Cuban citizenship. KMRG received permanent resident status in South Africa three years after the birth of DGLR. DGLR was therefore stateless. Despite section 2 of the South African Citizenship Act 88 (1995) declaring anyone born without a right to citizenship in another country to be a citizen by virtue of birth, the Department of Home Affairs (‘the Department’) refused to register DGLR as a South African citizen. DGLR applied for judicial review of that refusal and declaratory relief for citizenship by birth under Section 2(2) of the South African Citizenship Act. The core dispute was whether the statutory requirements for citizenship by birth were met and whether the Department’s refusal, grounded in its administrative approach to documentation and registration, was lawful.

At first instance, the High Court had reviewed and set aside the decision not to register DGLR as a South African citizen. It declared DGLR a South African citizen by birth in terms of Section 2(2) of the Citizenship Act. The Court ordered the Minister to enter the child on the National Population Register as a citizen, issue a citizen identity number, and amend and re‑issue the birth certificate to reflect citizenship. The Court also directed the making of regulations relating to Section 2(2) pursuant to Section 23 of the Act within a reasonable time and awarded costs against the respondents.

The Department appealed to the Supreme Court against the decision of the High Court.

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Legal Arguments

Legal Arguments of Appellants

1)The court a quo should have dismissed the application on the basis that no case has been made out both on the facts and the law by properly applying the law and the legal principles on conferment of citizenship, the Constitution of the Republic of South Africa and international law on statelessness.

At the time of the child’s birth, both her parents were Cuban nationals. In terms of Section 2(1) of the South African Citizenship Act (No. 88 of 1995), for the minor child to acquire South African citizenship by birth, one of her parents should have been a South African citizen.

2)The judge erred in law and in fact by making an order declaring that the minor child is a South African citizen by birth in terms of Section 2(2) of the South African Citizenship Act.
Under Section 2(2) of the South African Citizenship Act, a person born in the Republic and who is not a South African citizen by virtue of subsection (1) (see legal argument 1 above), can only be a South African citizen if he does not have citizenship or nationality of another country or has not such rights and his/her birth is registered in the Republic in accordance with the Births and Deaths Registration Act.

The Appellants argued that the Respondent did have a right to be issued with a Permanent Residence Permit through the mother and that once the permit was issued to the child, the mother can apply for a certificate of naturalisation of the child. The Applicants also argued that her birth was not registered under the Births and Deaths Registration Act because the birth certificate that was issued did not include an identity number, which is required.

The judge in the court a quo argued that this was not in the best interest of the child as even though she could apply for a Permanent Residence Permit through the mother, her status would depend on that of her mother, unlike citizenship by birth which she has acquired independent of her mother.

The Appellants held that the court erred in this finding.

3)The judge ought to have at the very least remitted the matter back to the Appellants to make a decision on whether or not the minor child qualifies in terms of the laws of the Republic of South Africa and international law to be a South African citizen.

The Appellants argued that the judge had limited powers to substitute the decision of the Minister with that of his own because under Section 25 of the South African Citizenship Act, the court can review a decision of the Minister and then the court can confirm, vary or set it aside – there is no power to substitute that decision for that of the court.

4)In her founding papers, the Respondent did not demonstrate exceptional circumstances as required by Section 8 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) for the Court to substitute the decision of the decision maker (the Department) with one of its own.

The substitution of the  decision of the Minister with that of the judge own could only take place in exceptional circumstances (under section of the PAJA) and the Appellants argue that no such exceptional circumstances were shown. The Appellants argued that the judge acted outside his powers.

5)The judge erred by making an order that the Minister should enter the minor child into the national population register as a citizen, and that the minor child by given a citizenship and a South Arican identification number and to amend and re-issue the minor child’s birth certificate.

6)The judge erred by making an order that the Respondents should make regulations in relation to Section 2(2) of the Citizenship Act within a time period that the Court deems reasonable.

7)The judge has by declaring the minor child a citizen of South Africa and by requiring the Respondents to issue regulations interfered with the separation of powers principle enshrined in the Constitution.

Legal Arguments of Respondents

The Respondent argued that the acquisition of citizenship in South Africa is regulated by the Citizenship Act and what is primarily at issue in this case is Section 2(2) of the Citizenship Act. Under Section 2(2), a child will be a South African citizen by birth when she meets four requirements:

-She must be born in the Republic
-She must not be a citizen in terms of section 2(1)
-She must not have citizenship or nationality of any other country, or a right to such citizenship or nationality; and
-Her birth must have been registered.

The Department conceded the first two, so the case turns on the remaining two scenarios.

The Respondents did not agree that as argued by the Appellants that the child qualified for permanent residence of any other country and thereafter her mother could apply for her naturalisation. The Respondents argue that that ‘other country’ is a country other than South Africa. They also argue the fact that the child may qualify to be a permanent resident does not equate to citizenship or a right to citizenship.

As far the birth certificate is concerned, the Respondents argued that there is no requirement that a birth certificate must be issued with an identity number and that it would not qualify as a birth certificate without such identity number being included.

The Appellants argued that if there was any doubt about the above, then it can be resolved by reference to the Constitution and international law. All statutes must be interpreted in a manner that best promotes the provisions of the Bill of Rights and the principles of international law.

Section 28(1)(a) of the Constitution provides that ‘every child has the right ..to a name and a nationality from birth’. The effect of the Department’s approach and interpretation would be to deny the child that right.

Section 28(2) of the Constitution provides that ‘A child’s best interests are of paramount importance in every matter concerning the child’. This is a guiding principle in each case that deals with a particular child and it is a standard with which to test provisions or conduct which affect children in general.

South Africa also ratified the UN Convention of the Rights of the Child (the CRC) on 16 June 1995. The CRC is the foremost international treaty that governs rights of children. Article 7 provides that a child has a right from birth to acquire a nationality and the States Parties shall ensure the implementation of these rights in particular where the child would otherwise be stateless.

South Africa is also bound by its obligations in terms of the African Charter on the Rights and Welfare of the Child which was ratified by South African on 7 January 2000. Article 4 deals with the right to nationality and provides that States Parties shall undertake to ensure that their Constitutional legislation recognise the principles according to which a child shall acquire nationality of the State in the territory  of which he has been born if at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.

The Appellants argued that based on international law, it is clear that South Africa was obliged to enact legislative measures to prevent children becoming stateless. It is also obliged to ensure that a child born in South Africa who had no other nationality attained South African nationality and that she did so upon her birth, not when she turned 18.

The Appellants argued that the order of substitution and declaratory relief was perfectly correct. A child that meets the requirements of the Citizenship Act is entitled to be a South African citizen from birth. There was no need to refer the matter back to the Minister and no separation of powers concern that arose from the order.

Outcome

The Department decided to withdraw the appeal and agreed to an order issued by the Supreme Court of Appeal, confirming the original High Court Order. The Supreme Court reaffirmed the need to make regulations in relation to Section 2(2) of the Citizenship Act.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	South African Citizenship Act 88 of 1995	s 2(2), s 4, s5, s 23, s 25
Domestic	Promotion of Administrative Justice Act 3 of 2000	s 8
Domestic	Immigration Act No 13 of 2002	s 25 – 28
Domestic	Births and Deaths Registration Act, 1992	s 9
Domestic	Children’s act No 38 of 2005	s 10
Domestic	South African Constitution	s 2 - 5, s 20, s28(1)(a), s28(2
International	UN Convention of the Rights of the Child	Article 7
Regional	African Charter on the Rights and Welfare of the Child	Article 4

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Liesl H Muller, ‘The Law is Not Enough: Realising the Child’s Right to a Nationality in South Africa’ (2022) 4(2) Statelessness & Citizenship Review 256

• DGLR was the first judgment to address the interpretation and implementation of s2(2) of the Citizenship Act, which provides citizenship by birth to otherwise stateless children.
• The article argues that South Africa’s progressive citizenship framework is undermined by discriminatory and inefficient administration, producing ongoing childhood statelessness; it also emphasises that due process is as crucial as substantive law to realising children’s nationality rights (pp.  257–263, 275–279).
• The article shows how racially selective immigration and citizenship policies entrenched intergenerational exclusion.  While the 2010 amendments strengthened safeguards (notably s 2(2) and s 4(3)), non-implementation and restrictive trends in the BDRA, Refugees Act, and Immigration Act continue to impede access (pp.  257–263).
• Key jurisprudence has advanced protection: DGLR clarified a factual approach to “otherwise stateless” under s 2(2) and rejected exhaustion requirements (pp.  264–272).
• Two persistent gaps remain: abandoned children, especially older children, and unaccompanied/separated migrant children lack clear, child-centred pathways to nationality.  The article proposes a special permanent residence dispensation, with a route to citizenship, to prevent statelessness in these cohorts (pp.  272–275).
• Administrative justice is the fulcrum: arbitrary denials, identity blocking, lack of written reasons, and inaccessible remedies amount to de facto deprivation of nationality, contrary to regional and international standards.  The article calls for written reasons, appeals, independent review, and child friendly procedures to make legal safeguards effective (pp.  275–279).