Amended Section 2 of the South African Citizenship Act, 1995 not to be applied retrospectively; citizenship by birth granted: South Africa HC

High Court of South Africa, Western Cape Division: This application was brought before N.P. Boqwana, J., seeking an order to declare DPB as a Citizen by Birth of South Africa and to issue an unabridged electronic birth certificate in terms of Section 9 of the Births and Deaths Registration Act, 1992 by respondent.

Facts of the case were that the two applicants who had filed this application were parents of DPB, holding South African permanent residence permits. DPB had a handwritten birth certificate which in practice was given to a child whose details were not included in the National Population Register. The grievance of the applicant was that the birth certificate did not contain any identity number. It is to be noted that the issue revolved around interpretation of Section 2 of the South African Citizenship Act, 1995 which stated the conditions under which a person would be considered a citizen of South Africa by birth before its amendment was enforced in 2013.

Respondents accordingly in the answering affidavit held the view that DPB was not a South African citizen, as contemplated by the old Section 2(1)(b) of the Citizenship Act read with Section 2(2).  After Court interpreted the old provision to be in favour of applicants, respondent argued that amended provision was retrospectively applicable to DPB according to which DPB would not be a citizen of South Africa.

Court was of the view that if amended provision is made applicable in the instant application then DPB would not be eligible to be a South African citizen by birth due to the fact that his parents were not a South African citizen at the time of his birth. But Court viewed the old provision to be applicable as a person born in South Africa whose parents have been lawfully admitted to the Republic for permanent residence ought to acquire citizenship by birth. On the question of retrospectivity of provision Court did not accept its applicability. Therefore, Court declared DPB to be South African citizen by birth and directed respondents to grant necessary documentation, birth certificate, issuance of unabridged electronic birth certificate and registration of DPB as citizen expeditiously. [FB v. Minister of Home Affairs, 2018 SCC OnLine ZAWCHC 1, dated 12-11-2018]

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