“You are the bows from which your children as living arrows are sent forth. (Kahlil Gibran – extract from “The Prophet”)
Imagine a child born in South Africa, to parents who fled from the country of their birth and who find themselves here as either refugees or illegal immigrants, in search of the best future they can possibly give their children. And while the parents have a national and cultural identity, the children born of refugees or illegal immigrants find themselves neither South African nor of the country of their parents’ birth.
If only this scenario was something borne of imagination. For so many children and families in South Africa this is unfortunately their harsh, dark and stark reality.
Exactly how many children are affected? In 2022, UNICEF (United Nations Children’s Fund) released statistics indicating that in Southern Africa, 12 million children under the age of 5 years exist, and whose births are not registered anywhere. 19 million children under the age of 5 do not have a birth certificate.
These statistics are shocking. More shocking because Section 28 of our Constitution , the foundation stone of our country, promises each child in this country the right to a name and nationality from birth. But it goes further back than the Constitution. South Africa ratified the United Nations Convention on the Rights of the Child in 1995. This Convention promises that “the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents” .
No wonder our firm has seen an influx of cases dealing with these so-called “stateless children”. The families of these children are desperate.
A birth certificate means everything these days. It is the foundation of our identity. That document that provides us with identification, establishing who we have been born to. It gives us access to education and healthcare and social services programmes. It is the ticket to a child’s future. A child without a birth certificate cannot be registered at a clinic or a hospital to have access to vaccinations and crucial medical care. Any kind of education can only stay a dream when a child does not have a birth certificate. These children are much more vulnerable to exploitation, abuse, and child trafficking.
Thankfully, all is not lost, and new hope has arisen. In M.M.E and Others v Director General, Department of Home Affairs and Another , the Court again highlighted the importance of the principle of the best interest of the child, the pillar of our Children’s Act.
In this case, the Applicants came to South Africa from Rwanda. They were married in 2011 and made their lives here. Both obtained refugee status. Their eldest daughter was born here and obtained her South African citizenship based on the Citizenship Act at the time, which, prior to 1 January 2013, allowed for a child born in South Africa to become a citizen by birth if one of the parents of such a person born had been lawfully admitted to the Republic for permanent residence.
However, the Citizenship Act was amended after 1 January 2013 to allow only for citizenship by birth in circumstances where one of the parents, at the time of the child’s birth, was a South African citizen. This is the issue that the Applicants’ second child faced.
The Department of Home Affairs, inter alia argued that the Applicants should apply to the Rwandan authorities to register her birth there, and based on that outcome, apply for her citizenship in Rwanda. The glaring problem for the Applicants was, however, that should they apply to the Rwandan authorities in this way, their own status in South Africa as refugees would be at risk and they ran the very real risk of being deported.
The situation was untenable – the parents had refugee status in South Africa, their eldest daughter had South African citizenship, and their youngest daughter was stateless.
Honourable Justice Millar beautifully captured the difference between a vested right in terms of our Constitution and “a right to apply” as follows:
“It is a foundational pillar of our law that ‘every child has the right to a name and nationality from birth’ and to ‘family care or parental care’ and overarchingly, ‘a child’s best interest are of paramount importance in every matter concerning the child’. The present application finds its genesis in the efforts on the part of the first and second applicants (the Applicants), the parents of a minor child, to obtain for that child, a legal status within the Republic of greater certainty than their own.
The argument for the Respondents while necessarily following the letter of the law, pays no heed to the obligation upon them, in the interpretation and application of the Citizenship Act, to have regard to the best interest of the minor child in this matter.
In cases such as the present one, ‘it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. ’
The circumstances in which the minor child finds herself, fall squarely within the provisions of section 2(2) of the Citizenship Act. It is constitutionally directed that a child is to have a nationality from birth, and it follows axiomatically that it is in the best interest of the child that this is so. In the circumstances the minor child is to be declared a citizen of the Republic of South Africa.”
As Judge Millar so eloquently stated – the letter of the law and procedure can never overshadow the cause of justice, and the interests of the minor child is elevated above all else.
I would venture to postulate that this principle should be applied to other areas where the law is supposed to protect those most vulnerable in our community. In a previous article published on our website (Breakthrough in South Africa for Intercountry Adoptions – 3 December 2024 – https://nlateam.com/breakthrough-in-south-africa-for-inter-country-adoptions/), I highlighted the role played by the Department of Social Development (“DSD”) in making inter-country adoption nigh on impossible, despite the best interests of the child being clearly served by such adoption. Just like the Department of Home Affairs, the DSD applied a checkbox approach to our clients’ application to adopt a South African child, forgetting that at the heart of the legalities and formalities and red tape is a small child who needs to be loved and cared for.
I hope that Judge Millar’s words are taken to heart, and that the Department of Home Affairs starts thinking and acting beyond the paperwork.
Helani van der Westhuizen
Director
084 513 5234
Helani@NLAteam.com
