CDH Pro Bono & Human Rights Practice continues to prevail with clients’ right to citizenship cases

Since our SCA victory in the Jose brothers’ matter in 2020, the CDH Pro Bono & Human Rights Practice (Practice) has continued to assist several clients in enforcing their rights to citizenship under section 4(3) of the South African Citizenship Act (Citizenship Act).

11 Feb 2022 3 min read Pro Bono & Human Rights Alert Article

At a glance

  • The CDH Pro Bono & Human Rights Practice has been assisting clients in enforcing their rights to citizenship under the South African Citizenship Act.
  • Difficulties were faced with the Department of Home Affairs, which declined to accept or process citizenship applications during the COVID-19 lockdown.
  • The Practice launched High Court proceedings and challenged the DHA's directives, leading to provisional citizenship being awarded to their clients and positively impacting their lives. 

The Practice did face some difficulty following the directives made by the Minister of Home Affairs in terms of the Disaster Management Act 57 of 2002, under which the Department of Home Affairs (DHA) declined to accept or process any section 4(3) citizenship applications, since the onset of South Africa’s ‘hard lockdown’ in March 2020, regardless of the clients’ circumstances or if applications were submitted before the COVID-19 virus was prevalent in South Africa.

Ms Chitengu was born and raised in South Africa by her mom, who fled Zimbabwe decades ago. Towards the end of 2020, the Practice took over Ms Chitengu’s matter. At the time of taking on her case, she was commencing her Masters of Laws Degree at the University of the Witwatersrand. Her application for citizenship was already submitted as far back as July 2019, however despite numerous attempts to follow up with the DHA, our Practice failed to receive the outcome of Ms Chitengu’s application. In another case, the three Mbumba sisters were born in South Africa to Angolan Nationals and have lived in South Africa all their lives. Our Practice applied for citizenship for the sisters in October 2019, however the Practice did not receive the outcome of these applications.

In light of the DHA’s failure to process the aforementioned clients’ applications, the Practice launched High Court proceedings in the Pretoria High Court in July 2021 in which Ms Chitengu and the Mbumba sisters were cited as applicants. The Practiced reviewed the DHA’s failure to process our clients’ section 4(3) applications, and challenged the DHA’s interpretation of its directives. Alternatively, it was argued that if the directives purport to preclude the DHA from indefinitely accepting, processing and / or adjudicating any applications in terms of section 4(3), irrespective of when the application was made and the circumstances of the applicant, they are to that extent unconstitutional, unlawful and invalid.

Despite initially filing a notice to oppose, the DHA subsequently agreed to adjudicate Ms Chitengu and the Mbumba sisters’ citizenship applications, and they were provisionally awarded South African citizenship on 27 January and 1 February 2022, respectively. This outcome has had a material impact on the lives and futures of the Practice’s clients who can now remain in South Africa as free citizens.

Simultaneously, the Practice has been assisting Ms N, a 26-year-old stateless person who was also born in South Africa and has lived here all her life. In the early 1990’s Ms N’s parents fled the Angolan civil war and sought asylum in South Africa. Ms N submitted an application to the Minister for the recognition of her citizenship in terms of sections 4(3), 2(2) and 15 of the Citizenship Act in December 2018. Several years later, the Minister had still not taken a decision in respect of the application and the Practice proceeded to launch review proceedings in the High Court in September 2020.

The matter was heard on the unopposed roll on 13 July 2021 and the High Court declared that the Minister had unreasonably delayed in deciding Ms N’s citizenship application. The Minister was also ordered to consider and decide the client’s citizenship application within 30 calendar days of service of the order. Despite service of the order on the Minister (care of the State Attorney) and the Director General in July 2021, the DHA failed to give effect to the order, this despite our best efforts to engage with the DHA regarding the enforcement of the order. The Practice therefore proceeded to supplement the papers and launched further proceedings in December 2020 in which we sought to declare the Minister in breach of the Court’s order of July 2021.

Several years after her initial citizenship application was submitted, Ms N was subsequently granted provisional citizenship in January 2022.

Despite the long, often exhausting battles fought by the Practice against various organs of state, outcomes like the ones above remind us of our sense of purpose and why our work is so important. The Practice aims to continue guiding the way for other individuals within similar predicaments.

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