M.M.E and Others v Director General, Department of Home Affairs and Another (21970/2021) [2025] ZAGPPHC 202 (12 March 2025)

Parties

Procedural Posture

Review Application / Judgment

Legal Issues

1. 1 Whether a child born in South Africa to refugee parents, who has no other nationality, is entitled to South African citizenship by birth under section 2(2) of the Citizenship Act.
2. 2 Whether the Department of Home Affairs' refusal to register the child as a South African citizen was lawful and constitutionally compliant.
3. 3 Whether the best interests of the child require recognition of citizenship from birth.

Ratio Decidendi

The court found that the minor child, born in South Africa to refugee parents, has no citizenship or nationality of any other country and her birth was registered in accordance with the Births and Deaths Registration Act. Section 2(2) of the Citizenship Act is designed to prevent statelessness and applies directly to her circumstances. The respondents' arguments that the child could apply for Rwandan citizenship or wait until majority were rejected, as these options would either imperil the parents' refugee status or fail to guarantee the child's right to a nationality from birth. The Constitution requires that the best interests of the child be paramount, and the statutory and...

Court Disposition

Application granted. The decision of the Department of Home Affairs is reviewed and set aside. The minor child is declared a South African citizen by birth. Respondents ordered to register the child as a citizen and pay costs.

Orders

• The late filing of the application is condoned.
• The decision of the First Respondent not to register the minor child as a citizen is declared unlawful and is reviewed and set aside.