Tebogo Khoza v The Minister of Home Affairs; The Director-General: Department of Home Affairs

Parties (including notable third parties)

Tebogo Khoza (Applicant); The Minister of Home Affairs (First Respondent), The Director-General: Department of Home Affairs (Second Respondent)

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Summary of Facts

Applicant’s evidence

The Applicant was born in South Africa on 17 April 1997 and lived all of his life in South Africa.

At the time of the Applicant’s birth, his parents were illegally in South Africa. The Applicant’s mother and grandmother were undocumented. The Applicant became an orphan at six years old, when his undocumented mother died. He was taken to Thabang Youth Centre in 2006 and was in the protection of the Children’s Court.

In 2013, the Applicant applied at his local Home Affairs office for birth registration and an identity document. As part of the registration process, a report was issued which found the Applicant lived in South Africa all of his life, was not registered at birth and his parents had connections to Swaziland (now called Eswatini). However, the Applicant was not familiar with Eswatini as he was born and grew up in South Africa. The Home Affairs office agreed with the Applicant that he would not be arrested or deported if he went to the Eswatini border. At the Eswatini border, the Applicant was refused entry as his mother and grandmother’s surnames were not from Eswatini.

Despite sustained efforts over a number of years, the Department of Home Affairs (‘Department’) determined that the Applicant did not have a claim to citizenship and they would not register his birth.

The Applicant cannot study, work legally, get married, get a driver’s licence, open a bank account or access any formal social assistance as a result of not being registered.

Respondent’s evidence

The Respondent disputed virtually every aspect of the Applicant’s evidence, including his date of birth, birth in South Africa, lack of documentation, need for care and protection as a child, location of his mother’s burial and Eswatini lineage.  The basis for such claims was primarily that the Applicant had not provided sufficient documentation to establish such facts.

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Legal Arguments

The issues for determination were:

• the resolution of the factual disputes between the Applicant and the Respondent;
• whether the Applicant’s birth should be registered late under the Births and Deaths Registration Act; and
• whether the Applicant qualifies for recognition as a South African citizen by birth under section 2(2) of the Citizenship Act; and
• whether the Applicant qualifies for naturalisation as a South African citizen under section 4(3) of the Citizenship Act.

Factual disputes

The Court outlined numerous precedents which outlined the principles for determining whether the Respondent’s disputes are real, genuine and bona fide.

The Court observed – “It is trite that bare or bald denials are insufficient to constitute a proper dispute.” [paragraph 32]

Late Registration of Birth: Births and Death Registration Act, 51 of 1992 (“BDRA”)

Notice of the birth of any child is required under section 9 of the BDRA within 30 days of birth. Under section 9(3A) of the BDRA, late registration will only be granted where the prescribed requirements for a late registration of birth are met, including proof of birth attested by a medical practitioner or an affidavit of a person who witnessed his birth.

The Respondents argued the Applicant’s late registration of birth did not meet the requirements of proof of birth in South Africa as he had not provided any of the necessary documentation.

Citizenship by Birth: Section 2(2) of the Citizenship Act

Section 2(2) has three legs that must be met before citizenship can be conferred on a person:

• they must not fit the requirements of section 2(1) of the Citizenship Act;
• they must not have citizenship or nationality of other countries; and
• their birth must be registered in terms of the BDRA.

The Respondent argued that the Applicant should have conducted an investigation to confirm there are no other countries that he has ties to.

Citizenship by Naturalisation under Section 4(3) of the Citizenship Act

The Applicant’s alternative, if the late registration of birth was not granted, was for citizenship by naturalization under section 4(3) of the Citizenship Act. There are four requirements that the Applicant should meet to have his citizenship recognised by the Minister:

• he was born in South Africa;
• he was born from parents who are not South African citizens and who have not been admitted to South Africa for permanent residence;
• he has lived in South Africa since birth until becoming and adult; and
• his birth is registered under the BRDA.

Outcome

Factual disputes

The Court rejected each and every one of the Respondent’s disputes in relation to the evidence of the Applicant on the basis that they are untenable, far-fetched, baseless and ambiguous.

Late Registration of Birth: BDRA

The Court was satisfied the Applicant substantially complied with the mandatory requirements to be successful with his application for the late registration of his birth.

The Court was satisfied the Applicant was born in South Africa. The Court found the Applicant’s birth was not registered because his parents were undocumented. The Applicant was also orphaned at 6 years old and placed into care at the centre at 9 years old so he should not be expected to have been able to keep a record of any documents.

The Court also found social workers were required to conduct enquiries under section 12 of the BDRA regarding notice of birth of an abandoned child. This was not done in the Applicant’s case, so the Applicant should not be blamed for the Department’s lack of action.

Citizenship by Birth: Section 2(2) Citizenship Act

The Court found the Applicant met all three legs of section 2(2): he did not qualify for citizenship under section 2(1), he had no right to any other nationality (including Eswatini), and his birth must be registered pursuant to the Court’s decision above.

The Court “also found that the Department’s claims that Mr Khoza ought to conduct some kind of lay investigation which may not even be accepted by the Department, to trace his paternal lineage, which may or may not lead to citizenship in Eswatini, are baseless.” (para 56)

Citizenship by Naturalisation: Section 4(3) Citizenship Act

The Court found the Applicant met all four requirements of section 4(3) of the Citizenship Act and that citizenship should be conferred upon him in the alternative to section 2(2) of the Citizenship Act.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention relating to the Status of Stateless Persons 1954	Article 1(1)
Domestic	Births and Death Registration Act, 51 of 1992	ss 2, 9, 9(3A), 12
Domestic	South African Citizenship Act 1995 (Act 88 of 1995)	South African Citizenship Act 1995 (Act 88 of 1995)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Ramekgwe Daniel Tijkila, ‘State of Statelessness for Displaced Persons Through the Doctrine Of Ubuntu: South African Domestic Perspective and International Law Obligation Through the Lens Of Khoza V Minister of Home Affairs [2023] 2 ALL SA 489 (GP)’ (2025) 18)1, Pretoria Student Law Review 1

• The article argues the court’s approach embodies a humane, evidence‑sensitive resolution that recognises the Applicant’s lifelong ties to South Africa and the state’s shared evidentiary burden in statelessness determinations.
• The article argues the case advances a normative framework for domestic and international law, contending that communal responsibility, human dignity, and inclusion should guide nationality processes and that rigid, technical, or bureaucratic hurdles are inappropriate where Applicants lack documents through no fault of their own.
• The article situates Khoza within a growing international consensus that arbitrary denial or deprivation of nationality violates fundamental rights. Circumstantial evidence and genuine links should instead be meaningfully weighed.