F.B and Others v Minister of Home Affairs and Others (11659/2018) [2018] ZAWCHC 153 (12 November 2018)

F.B and Others v Minister of Home Affairs and Others (11659/2018) [2018] ZAWCHC 153 (12 November 2018)

The Court held that D P B is a South African citizen by birth because both parents were lawfully admitted for permanent residence at the time of his birth, satisfying the requirements of section 2(1)(b) of the pre-amendment Citizenship Act. The negative construction of section 2(2) operates as a disqualification only where one parent lacks permanent residence and the other is not a citizen; this was not the case here. The Court rejected the respondents' argument for retrospective application of the amended provision, finding that such application would unlawfully interfere with vested rights. The respondents' refusal to issue an unabridged birth certificate was therefore unlawful, and the...

Citation
[2018] ZAWCHC 153
Parties
Applicant: F B; Applicant: H B; Applicant: F B obo D P B; Respondent: Minister of Home Affairs; Respondent: Director-General, Department of Home Affairs; Respondent: Director: Births, Marriages, Death and Records Management
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 November 2018
Case Number
11659/2018
Procedural Posture
Review Application / First Instance Judgment
Outcome
Application granted; D P B declared a South African citizen by birth and respondents ordered to issue documentation.
Judges
N P Boqwana
Legal Topics
Citizenship by Birth, Births and Deaths Registration Act, Retrospective Application of Statutes, Permanent Residence, Child Rights
Administrative Law Constitutional Law Citizenship by Birth Births and Deaths Registration Act Retrospective Application of Statutes Permanent Residence Child Rights

Case Brief

Summary, issues, holding and outcome

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Parties

F B

Applicant

H B

Applicant

F B obo D P B

Applicant

Minister of Home Affairs

Respondent

Director-General, Department of Home Affairs

Respondent

Director: Births, Marriages, Death and Records Management

Respondent

Procedural Posture

Review Application / First Instance Judgment

Legal Issues

  1. 1 Whether D P B, born in South Africa to parents with permanent residence, qualifies as a South African citizen by birth under the pre-amendment Citizenship Act.
  2. 2 Whether the amended section 2 of the Citizenship Act applies retrospectively to D P B.
  3. 3 Whether the respondents' refusal to issue an unabridged birth certificate was lawful.

Ratio Decidendi

The Court held that D P B is a South African citizen by birth because both parents were lawfully admitted for permanent residence at the time of his birth, satisfying the requirements of section 2(1)(b) of the pre-amendment Citizenship Act. The negative construction of section 2(2) operates as a disqualification only where one parent lacks permanent residence and the other is not a citizen; this was not the case here. The Court rejected the respondents' argument for retrospective application of the amended provision, finding that such application would unlawfully interfere with vested rights. The respondents' refusal to issue an unabridged birth certificate was therefore unlawful, and the...

Court Disposition

Application granted; D P B declared a South African citizen by birth and respondents ordered to issue documentation.

Orders

  • It is declared that D P B (Date of birth: 26 April 2011) is a South African citizen by birth.
  • The second respondent is directed to issue an unabridged electronic birth certificate in terms of section 9 of the Births and Deaths Registration Act, No. 51 of 1992, at the Caledon office of the Department of Home Affairs within ten (10) days of the order of this Court in respect of D P B, such birth certificate to...