The Pretoria high court has ordered the Department of Home Affairs to register the birth of a man who has spent the last decade struggling to have his presence in South Africa recognised. In a judgement handed down on Monday 27 February, the court found that the department had failed in its mandate to assist Tebogo Khoza, a stateless orphan, in obtaining South African citizenship.

Khoza was born in South Africa to parents who were undocumented and in the country illegally, according to the court order. When he was orphaned at six years of age, his birth had not yet been registered by his biological parents. He was placed in the care of the Thabang Youth Centre in Limpopo at age nine.

In 2013, when Khoza was 16 years old, he first applied for a late registration of birth and an identity document at his local Home Affairs office. The high court found that he was subsequently sent from “pillar to post” by the department in his efforts to obtain citizenship, and was not assisted adequately, even when department officials made findings that supported his claims about his birth.

“It is clear from the evidence that the department has shown itself to be inflexible, oppositional and [has provided] little to no basis for its refusal to Mr Khoza’s claims,” stated the court. “Mr Khoza has done all he can do to comply for a decade… His infringement continues and he endures prejudice every day that he is not declared a citizen.”

The Department of Home Affairs has been given 30 days to register Khoza’s birth, enter him into the National Population Register as a citizen, issue him with an identity number and reissue his birth certificate accordingly.

Thandeka Chauke, an attorney at Lawyers for Human Rights (LHR) who assisted in Khoza’s case, expressed the hope that the court’s judgement would herald a change in the way cases of statelessness were treated.

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“Throughout the judgement, you will see that the Department of Home Affairs’ attitude towards these cases is something that needs to be brought to account. We cannot simply be sending people from pillar to post when they need help from the very government, the very department, that has the constitutional mandate to provide the public with services such as civil registration and access to identity documentation,” she said.

“You will see throughout the judgement how an emphasis was put on the fact that a person who approaches the Department of Home Affairs for assistance needs to be assisted. It’s not enough for Home Affairs to… leave them in this indefinite state of not having an identity, of being stateless.”

Contempt of court

The high court order handed down on Monday further found that the Minister of Home Affairs had failed to promulgate regulations to give effect to section 2(2) of the Citizenship Act as required by section 23 of the act, despite three prior court orders instructing him to do so. This failure “amounted to contempt of court”, according to the judgement.

Section 2(2) of the Citizenship Act states that any person born in South Africa shall be a South African citizen at birth if: 

• they do not have citizenship or nationality of any other country, or have no right to such citizenship or nationality; and
• if their birth is registered in South Africa in accordance with the Births and Deaths Registration Act.

“There has been a previous case that Lawyers for Human Rights launched in 2014, through the Pretoria high court… It was similar facts or circumstances to Tebogo’s case, concerning a child who was born in South Africa and who was stateless, and the Department of Home Affairs had refused to accept an application for citizenship on behalf of that child made in terms of Section 2(2) [of the Citizenship Act],” Chauke told Maverick Citizen.

In this case, the court instructed the department to make regulations for Section 2(2) of the Citizenship Act that would provide further guidance on how administrators could identify someone who was eligible for citizenship under the provision, she said.

“In respect to that order, the department was supposed to comply by March 2018, and already we are in 2023 and there are still no regulations to Section 2(2), which is why cases like Tebogo’s continue to come up because there is no mechanism through which stateless children can apply for citizenship.”

Statelessness in South Africa is a pervasive problem, continued Chauke. The Statelessness Unit at Lawyers for Human Rights has about 800 files open, 500 of which are related to birth registration issues.

“Why birth registration is linked to statelessness is because without a birth certificate, a child will struggle to prove two important facts that are critical to establishing what your nationality is, and that is place of birth and who your parents are,” said Chauke.

“It is important to address childhood statelessness because statelessness really forces a person to live on the margins of society — you cannot function or have a normal life without any form of legal identity.” DM/MC