Republic of South Africa

This section measures the state’s progress in terms of the extent to which it has signed and ratified the most relevant international and regional legal instruments which provide for the right to nationality, the prevention or reduction of statelessness, and the protection of stateless persons.

Score available: 15.5

South africa scores 9,5 out of 15,5 for ratification of international instruments relevant to the right to a nationality. Although rsa scores higher than botswana, the score is significantly lower than the kingdom of eswatini, which is party to both un statelessness conventions and has made important pledges relevant to the reduction of statelessness in 2019.

South africa’s score, high with regards to most human rights instruments, is brought down by the fact that it has not signed or ratified two of the most relevant international instruments — the 1954 un convention on the status of stateless persons and the 1961 un convention on the reduction of statelessness. Despite having pledged to sign both conventions in 2011, south africa has not followed through on this pledge. In 2019 at the high-level segment on statelessness in geneva, south africa did not use the opportunity to sign the conventions, nor to make additional pledges toward the eradication of statelessness in sadc.

Somewhat Positive

Birth registration is the most authoritative evidence of the key facts which establish a person’s nationality. Lack of access to birth registration and a birth certificate, issued as proof of such registration, is a cause of statelessness and a barrier to recognition of citizenship. This indicator records the relevant information on the rates of birth registration in the country, as well as the legal provisions regulating birth registration, including late registration, the issue of birth certificate, and any discrimination in law based on the parents’ immigration status, sex or marital status. It also considers the law on access to consular registration.

Score available: 15

South africa scores 9 out of 15 for access to birth registration. Despite being a best practice example in the region and the continent for increased birth registration in the short a short period of time since democracy, south africa has in the last 5 years introduced under-inclusive laws for birth registration and the birth registration rate has been slowly declining. These laws have been criticized by the un committee on the rights of the child and the african committee on the rights and welfare of the child as discriminatory.

They have encouraged the south african government to review its laws in as far as they discriminate against vulnerable groups and prevent access to existing citizenship rights on prohibited grounds. In 2021, the south african constitutional court handed down judgment in a landmark case which declared a section in the law unconstitutional which prevented unmarried fathers from registering their children when the mother is unavailable or unable to assist with the registration.

Somewhat Positive

African and other international law establishes minimum legal provisions for the prevention of statelessness at birth. These standards include the presumption of nationality for children of unknown parents found in the territory, and the grant of nationality to children born in the territory who do not acquire another nationality at birth. The african committee of experts on the rights and welfare of the child in its general comment no.2, on article 6 of the african children’s charter, and the african commission on human and peoples’ rights in its study on the right to a nationality and in its resolution 234 of 2013.

The draft protocol to the african charter on human and peoples’ rights on the specific aspects of the right to a nationality and the eradication of statelessness in africa endorses many of these recommendations. This indicator measures the relevant state’s performance in providing legal effective safeguards against statelessness at birth.

Score available: 15

South africa scores 6 out of 15 for prevention of statelessness at birth. Once again, south africa’s good example in inclusive laws is undermined by a lack of implementation or discriminatory provisions in birth registration laws. South african law does not make provision for the granting of nationality to foundlings, a significant concern for this country. South africa also loses points for making its safeguards against statelessness and some of its acquisition provisions dependent on birth registration.

South africa could significantly increase its score by implementing its safeguards in line with court rulings; and by amending its laws to include a provision for foundlings and removing the requirements for birth registration in acquisition of nationality.

Somewhat Negative

Discrimination in transmission of nationality based on sex is one of the most common causes of statelessness. There are five questions for this indicator, considering whether there is a general constitutional prohibition on discrimination based on sex, equality in the right to transmit nationality to children (natural and adopted) and to spouses, and discrimination in the provisions for mothers and fathers to register the birth of a child (subject only to proof of parentage, where relevant).
These questions are already addressed in the previous two indictors that consider birth registration and prevention of statelessness at birth generally; but this indicator pulls out the specific area where gender discrimination is likely to occur.

The questions on equal rights to transmit to children and to register a birth also request that information is recorded in the comment column relating to discrimination based on nature of the discrimination, including the rights of different parents in case of birth in or out of wedlock.

Score available: 5

South africa scores 4 out of 5 for gender equality in citizenship laws. Its constitution explicitly states that no discrimination on the basis of sex is allowed, and this is reflected in its gender-neutral citizenship act. However, south africa’s birth registration laws are discriminatory as they apply to single fathers.

The constitutional court has declared this section to be unconstitutional and struck it from the law. Unfortunately, this change in the law is not yet reflected in practice, and the law and its regulations have not been updated. Fathers are still facing problems registering their children and therefore passing nationality to their children.

Positive

Lack of access to naturalisation is a cause of statelessness, especially in countries that have no rights to nationality based on birth in the territory, where many adults hold no documentation recording their nationality, and where birth registration rates are low. Access to naturalisation is particularly important for (long-term) refugees and for stateless persons – and the un convention on refugees and stateless persons provide that naturalisation should be facilitated in both cases.

This indicator considers the legal provisions on access to naturalisation based on marriage and based on long residence, and facilitation for refugees and stateless persons. It also considers the protections against statelessness that are in place in case a person is required to renounce any other nationality, for the children of those who naturalise, and for the children born after a parent has naturalised. Any special efforts to facilitate access to naturalisation are considered under indicator 8.

Score available: 8

South africa scores 4 out of 8 for naturalization. South africa loses a significant part of its score in this indicator because it does not make provision for facilitated access to naturalization for stateless persons and persons of unknown nationality, nor does it waive legal residence for person who were stateless. It also requires renunciation of an existing nationality if that country does not allow dual citizenship without providing for a safeguard against statelessness.

Somewhat Negative

This indicator considers the formal legal provisions for loss and deprivation of nationality. Arbitrary denial of nationality is rather considered under indicator 7, which looks at implementation of the law in practice.

The most detailed international guidance on loss and deprivation of nationality is provided by the 1961 convention on the reduction of statelessness (which uses ‘loss’ to mean withdrawal of nationality that is automatic, by operation of law; and ‘deprivation’ to mean withdrawal that is initiated by an act of the executive branch). These standards must now be interpreted in light of later human rights law – as set out in unhcr’s guidelines on statelessness no.5, on loss and deprivation of nationality.

Neither loss nor deprivation of nationality should result in statelessness. One of the most common ways in which loss of nationality can result in statelessness is when dual nationality is not permitted, even for a person who is born with two nationalities (for example, because the parents have different nationalities).

Whether this is applied to children, or only on attaining majority, a person may be left stateless if there is a presumption that another nationality has been acquired but there is no verification that the other state recognises the nationality of the person in practice.

Score available: 1

South africa scores -2 out of 1 for loss and deprivation of nationality. The law does allow dual nationality but makes provision for automatic loss of nationality under certain circumstances, without providing for a safeguard against statelessness. Unfortunately, the law makes provision for the loss of nationality of the children of adults who lose their nationality. This section is not subject to a safeguard against statelessness either.

Negative

The right to due process is enshrined in many international and african human rights instruments. In both cases, it considered that arbitrary denial of nationality, in case of a person previously recognised as a national, constitutes arbitrary deprivation.
The african commission has held that article 7(1) of the african charter on the the right to have a cause heard applies to cases of deprivation or denial of nationality, and to a resulting deportation. The african court on human and people’s rights has affirmed the views of the african commission, and that the prohibition of arbitrary deprivation of nationality under article 15 of the universal declaration of human rights is part of customary international law.

The questions for this indicator ask whether the constitution establishes the right not to be arbitrarily deprived of nationality, the right to due process in administrative decisions, and the right to court review of decisions by the executive branch.
In relation to the nationality law, they ask specifically whether administrative decisions must be reasoned and notified to the person concerned in writing, and whether the affected person has the right to make representations before loss or deprivation of citizenship takes effect.

In relation to administrative or judicial review of a decision, the questionnaire asks whether the fact that a person holds a document recording nationality is prima facie evidence that he or she is in fact a national, whether there is an administrative review, and the availability of appeal to national human rights institutions or the courts, and to legal assistance.

Score available: 8

South africa scores 2,5 out of 8 for just administrative action. Unlike many other african countries, the south african constitution contains a right to not be deprived of citizenship. Although its general laws on administrative justice are a best practice example, its score is brought down by the high cost.

Somewhat Negative

This indicator considers, first, the existence of procedures to determine nationality of children and adults whose nationality is currently unknown (whether through recognition of existing nationality or naturalisation in the state of residence, or recognition of a different nationality); and secondly, the establishment of a statelessness determination procedure and protection of stateless persons.

The indicator thus places greater weight on the determination of a person’s nationality, with protection as a stateless person proposed only if nationality cannot be determined or granted, and as a temporary status, pending resolution of nationality.
The indicator recognises as best practice the legal provision in several states in africa for recognition by a court of a person’s ‘apparent status’ as a national, where nationality is undocumented by a person has always acted and been treated as a national.

The indicator also recognises special efforts that are made by states to identify populations that are stateless or at risk of statelessness and resolve their status.

Score available: 17

South africa scores 1 out of 17 for resolution of unknown nationality and protection of stateless persons. South africa has no special procedures and initiatives to identify and resolve the status of those with unknown nationality. The government of south africa does have a mechanism in law which can be, and has been used, to regularize stateless persons. However, it is not designed for such a purpose and is therefore not easily accessible to stateless persons. At least, south africa, unlike many other countries, has a limit for the time a person may be detained in immigration detention.

Negative

The government of south africa had pledged in 2011 to become party to the un statelessness conventions, but disappointingly did not fulfil those pledges. However, despite not making pledges at the 2019 high level segment on statelessness in 2019, it did make pledges on the global refugee compact (grc). At the global refugee forum (grf) in 2019 sa pledged to:

1. Promote civil registration and related documentation in order to ensure that the south african nationals and refugees in the territory of south africa are properly documented; and
2. To promote civil registration and related documentation across the sadc region to ensure that regional citizens are properly documented to eradicate possibilities of statelessness in the region.

South africa scores an additional 2 points as a bonus here, for pledges in 2011 and 2019.