By Nokuthula Ndlovu

A ‘permanent resident’ is a ‘person having permanent residence status in terms of the Immigration Act’ (South    African Citizenship Act 88 of 1995). The Immigration Act 13 of 2002 as amended in 2004 provides in s 25(1): ‘The holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship.’ The Identification Act 68 of 1997, provides for the issuing of identity documents is applicable to South African citizens and persons who are lawfully and permanently resident in the Republic in terms of s 3. According to the Regulations on the Registration of Births and Deaths, 2014 GN R128 GG37373/26-2-2014 (the Regulations) a non-South African citizen is a ‘person who holds a valid temporary residence visa contemplated in sections 11 to 23 of the Immigration Act, and includes an asylum seeker or refugee issued with a permit in terms of section 22 or 24 of the Refugees Act [130 of 1998]’. This means that a permanent resident is actually a citizen of South Africa (SA) as permanent residency is issued in terms of s 25 of the Immigration Act, which also awards the rights and obligations of a citizen to a permanent resident.

Section 7(2) of the Regulations provides that: ‘Upon approval of a notice of birth, the Director-General must issue to the parents a birth certificate with an identity number for holders of a valid –

(a) permanent residence permit issued in terms of the Immigration Act, on a Form DHA – 19 illustrated in Annexure 24, as contemplated in terms of section 7(2)(b) of the Identification Act’.

Regardless of the above and the provisions of s 7(2) of the Regulations, the situation on the ground is that the Department of Home Affairs does not grant the infants of valid permanent residency holders identity numbers, on the basis that permanent residency holders are not South African citizens. A notice of birth is issued and so the births of such children are registered in terms of the Births and Deaths Registration Act 51 of 1992, but when it comes to the issuing of a valid South African identity document and birth certificate, hand-written records of their birth are issued without a valid identity number. The parents of these children are then compelled as a result to obtain citizenship for their children from the country of decent.

The Department of Home Affairs may defend its practices by alleging compliance with s 8(5) of the same Regulations, which provides that: ‘Upon approval of a notice of birth, the Director-General must issue to the parents a birth certificate without an identity number’ in respect of children born of parents who are non-South African citizens. However, as clarified already, permanent residence holders do not fall under non-South African citizens based on the legislative definitions highlighted above. A non-South African citizen does not include a permanent residency holder in terms of the definition provided by the same Births and Deaths Registrations Act.

The Births and Deaths Registrations Act also makes a further separate provision for permanent resident holders and non-South African citizens, which emphasises that the one is not the same as the other in respect of rights and obligations. The fact that the Identification Act is applicable to South African citizens and permanently resident persons within the Republic (s 3 of the Identification Act states: ‘This Act shall apply to all persons who are South African citizens and persons who are lawfully and permanently resident in the Republic’) indicates the intention to duly issue permanently resident persons with valid identity numbers. It goes without saying that the offspring of such people will also reside with the parents, unless otherwise indicated by the parents and they also should be issued with valid identity documents. Section 8 of the Identification Act emphasises this by adding that the persons mentioned in s 3 of the Identification Act, to whom the Act applies, must be assigned with an identity number. The registration of births in SA is in terms of the Births and Deaths Registration Act. The content regarding permanent residence holders does not support the Department of Home
Affairs’ practices where children born to permanent residence holders are denied identity numbers.

In an attempt to search for justification in the Department of Home Affairs practices, consideration is also given to the South African Citizenship Act. Citizenship can be obtained by birth so the infant of a permanent residency holder can be South African by birth before merits are looked into. Section 2(2) provides that any person born in the Republic who is not a citizen by virtue of provisions of subs (1) shall be a South African citizen by birth if –

‘(a) he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and

(b) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992.’

The births of permanent residents’ infants born in SA are recorded ‘in accordance with the Births and Deaths Registration Act.’ However, the Department of Home Affairs compels permanent residency holders to obtain citizenship for their children born in SA elsewhere by mandating and maintaining that permanent residence holders are not South African citizens despite the definition of a non-South African citizen and also the provisions of the Births and Deaths Registration Act. The mandate is on the face of it, manipulation to justify the Department of Home Affairs refusal to grant such children valid identity numbers and, alternatively, citizenship. The practice of the Department of Home Affairs denying children of permanent residency holders identity numbers is, therefore, inconsistent with the Births and Deaths Registration Act. It is also a violation of choice wherein the permanent residency holders have a right to independently choose to exercise their rights of citizenship in another country. This right is taken away from them and decided on by the Department of Home Affairs. In essence the children of permanent residency holders cannot claim their South African citizenship by birth because they have been forced to obtain citizenship or nationality from another country in respect of which they have a claimable right to citizenship by descent.

The practice of the Department of Home Affairs denying children of permanent residency holders identity numbers and ultimately citizenship also compromises the principle of the best interests of the child. The parents of the infant are unable – in some cases – to immediately lodge school applications because they do not have an identity number. If such a child were to travel out of the country, they would not be able to return with their parents until such a time as a passport and visitor’s visa can be processed, alternatively they would have to wait for a residency application to be processed. The infant is, therefore, placed at risk of being separated from the parents besides the experience of being denied an identity document despite the law.

There is also the issue of costs involved in processing these unnecessary applications and in some cases the parents have to travel with their infants in order to access the relevant consul. The hand-written birth record posing as a birth certificate contains a number that is unidentifiable as a South African identity number and or passport from another country possibly just reducing the birth of the infant to a mere statistic. Notwithstanding the contents of the birth record such children are in terms of s 7(2) of the Regulations supposed to be issued with identity numbers and, therefore, citizenship. It is an unnecessary inconvenience that permanent residency holders are forced to register the births of their children in the country of decent and, thereafter, apply for a passport before proceeding with further applications for residency on behalf of a child that must in terms of the Births and Registrations Act be granted an identity document and, therefore, citizenship.

Without speculating the reasons for the Department of Home Affairs’ current practices on the ground, the law is clear on its position of permanent residence. It is a status that grants or leads to citizenship by firstly awarding the holder rights due to a citizen. Understandably those rights are limited but that does not take away from the status of being a citizen. Section 3 of the Constitution provides that there is common South African citizenship emphasising on equality. Being a permanent resident is a preliminary stage of being a citizen for people who are eventually naturalised as South African citizens. Section 20 of the Constitution provides that: ‘No citizen may be deprived of citizenship’ and yet the Department of Home Affairs deprives infants of permanent residence citizenship by forcing them to obtain citizenship elsewhere. Every child born in South Africa and registered in terms of the Births and Deaths Registration Act has a right to a name and nationality as is provided in s 28 of the Constitution. The Department of Home Affairs’ practices are, therefore, inconsistent with legislation and it is unconstitutional.

Nokuthula Ndlovu LLB MA (Human Rights) (University of Fort Hare) is a prosecutor (Disciplinary Coordinator) at the University of Fort Hare.

This article was first published in De Rebus in 2018 (Dec) DR 22.