Minister of Home Affairs v Ali and Others

Parties (including notable third parties)

First Appellant: Minister of Home Affairs, Second Appellant: Director-General of Home Affairs; First Respondent: Miriam Ali, Second Respondent: Aden Nuredin Salih, Third Respondent: Kanu Teka Jorsen Nkololo, Fourth Respondent: Farieda Nsoki, Fifth Respondent: Caroline Masuki

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Summary of Facts

The Respondents were six individuals born in South Africa between 1996 and 1998 to parents who were not South African citizens and had not been admitted for permanent residence. Their births were registered in accordance with the Births and Deaths Registration Act of 1992, and they had lived in South Africa continuously since birth. They had no meaningful ties to their parents’ countries of origin and regarded South Africa as their only home.

Section 4(3) of the South African Citizenship Act 88 of 1995 (as amended by the Citizenship Amendment Act 17 of 2010) came into operation on 1 January 2013. It provides that a child born in South Africa to non-citizen/non-permanent resident parents qualifies to apply for South African citizenship on becoming a major if: (i) the person has lived in South Africa from birth until majority, and (ii) the birth was registered under the Births and Deaths Registration Act of 1992.

The Department of Home Affairs refused to accept or process the Respondents’ applications, contending that Section 4(3) applied only to persons born on or after 1 January 2013 and that, in any event, the necessary application forms and regulations had not been promulgated. The Respondents approached the Western Cape Division of the High Court for declaratory and mandatory relief, including an order compelling the Minister to accept applications supported by affidavits pending promulgation of regulations. The High Court granted relief; the Minister appealed.

The central issue was whether Section 4(3) entitles persons born in South Africa before 1 January 2013, who meet its requirements and attain majority after that date, to apply for naturalisation—despite the Minister’s interpretation and failure to promulgate regulations—and whether the High Court’s remedial orders (including acceptance of affidavit-based applications) impermissibly encroached on the separation of powers.

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Legal Arguments

Arguments by the Appellants

The Appellants contended that Section 4(3) applies only to people born on or after 1 January 2013, effectively deferring the first eligible cohort until 2031, and that applying it to those born before 2013 would be impermissibly retrospective, create new rights/obligations, and strain departmental resources.

The order directing acceptance of applications on affidavit was said to usurp executive functions, and disregard statutory procedures for issuing naturalisation certificates, contrary to the separation of powers.

The Appellants also argued that the Respondents should have put the Minister ‘on terms’ to decide their applications under s 25 of the Citizenship Act before litigating.

Arguments by the Respondents

The Respondents contended that they met all jurisdictional requirements to qualify for citizenship by naturalisation in terms of Section 4(3).

They argued that applying Section 4(3) to persons who reached the age of majority after 1 January 2013 does not take away vested rights or create new obligations in respect of past matters; it simply recognises a current entitlement to apply upon majority.

The Appellants also argued that denying them the opportunity to apply for citizenship on the basis that the Minister had not yet promulgated regulations infringed on their Constitutional rights.

Outcome

The appeal was dismissed with costs. The Court confirmed that persons born in South Africa who meet the criteria in Section 4(3) may apply for citizenship upon attaining the age of majority irrespective of their birth date relative to 1 January 2013, on the following basis:

• Counsel for the Appellants conceded on appeal that the Respondents satisfied the jurisdictional requirements of Section 4(3).  The concession that the retrospectivity argument was ‘unsound’ was accepted by the court.
• The Court held that applying Section 4(3) to persons who became reached the age of majority after 1 January 2013 does not impair vested rights or create new obligations concerning past matters. When Section 4(3) came into force, none of the Respondents had turned 18 or applied for citizenship; there were no pending decisions and no departmental steps taken that could be affected.
• The Court found no rational purpose in distinguishing between those born before and after 1 January 2013, and characterised the Minister’s approach as unfairly discriminatory and contrary to the spirit, purport and objects of the Bill of Rights.
• Given the Minister’s inordinate delay and failure to promulgate regulations under Section 23(a), the High Court’s order that applications be accepted on affidavit was a just and equitable remedial measure within constitutional bounds; it did not dictate the content of regulations and thus did not encroach on separation of powers. The Court stated that: ‘It is not in the interests of justice and neither is it just and equitable to send the Respondents from pillar to post simply because the Minister has adopted a supine attitude that the regulations will only be promulgated in due course. This state of affairs cannot be countenanced.’ (paragraph 20)
• The suggestion that Respondents should have first invoked Section 25 was untenable because no applications could be made in the absence of forms, and the Department repeatedly turned them away. There was no decision to review or set aside.
• The High Court’s order was amended to require the Minister to promulgate regulations within one year and to accept affidavit-based applications pending promulgation

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	South African Citizenship Act 88 of 1995	Ss 2(2), 4(3), 5(1)(b), 23(a), 25
Domestic	Births and Deaths Registration Act 51 of 1992
Domestic	Refugees Act 130 of 1998
Domestic	Constitution of the Republic of South Africa, 1996	Ss 38(a), (b), (d), 172(1)(b) Bill of Rights

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

• The author discusses that the case pertained to Section 4(3) of the Citizenship Act, and that Section 4(3) had not been implemented since its inclusion in the Citizenship Act for want of a regulation and because of conflicting interpretive positions.
• The author points out that the case declared the Respondents to be South African citizens while clarifying the correct interpretation of the Act. The Department was ordered to issue regulations providing a form to facilitate applications for citizenship at local offices.
• The importance of this and other related cases lie in the  finding that Section 4(3) is applicable retrospectively, applying to all persons born before its inclusion in the Citizenship Act in 2013. Section 4(3) is an important safeguard against statelessness, in that those who are born to refugees and live in South Africa all of their lives are likely to have lost ties with their parents' country of origin, making it difficult, if not impossible, to apply for citizenship in that country.

Leah Ndimurwimo and Michaela Jahnig, ‘The Impact of Climate Change on Statelessness in the Southern African Region’ (2022) 8(3) African Human Mobility Review 94

• The authors discuss that the Supreme Court ordered the Minister to make regulations in relation to Section 4(3), and that pending promulgation applications for citizenship be accepted in affidavit form.
• At the time of the authors writing the article, no regulations have yet been promulgated.