Crucial high court statelessness case tests route out of legal limbo

4 November 2022 · Carmel Rickard

A young man, stateless and unable to access even the basic rights that go with citizenship, has brought what could be a precedent-setting case in the high court of South Africa. The young man, who knows nothing of his father, and whose mother died when he was very young, wants the court to order that he be granted citizenship of SA, either by birth or through naturalisation. He has also urged the court to order that the relevant government department must establish regulations, as the law clearly says it must, providing a route for people in his position to acquire citizenship.

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Read heads of argument

The tragedy of statelessness lies deep in the heart of a major new case, argued before the high court in Pretoria, South Africa.

It concerns Tebogo Khoza, a young man, orphaned at a very young age, before his birth was registered by his parents, and who has grown up stateless. After decades trying to find a way out of his statelessness cage, he has finally, and in obvious despair, asked the high court to order that he is entitled to SA citizenship, either by birth or through naturalisation.

According to his founding affidavit, he was born in SA during 1997 and has lived in that country all his life, never having crossed the border. However, he is ‘not recognised as a citizen by SA or any other country.’

Pauper’s burial

He never knew his father. He was very young when his mother died. She was given a pauper’s burial and his grandmother took him to the Thabang Youth Centre where he stayed until he turned 18. Now he lives and works on a game farm in Limpopo province.

Because he was an orphaned child, the Children’s Court formally placed him with the youth centre and he has copies of the court orders to this effect. He’s now part of Thabang’s Independent Living Programme which supports young adults to acquire training and employment.

Neither his mother nor his grandmother had any identity documents and he, even with the help of the centre, has been unable to trace a copy of his mother’s death certificate. ‘I do not even know the place where my mother was buried,’ he adds.

Arrest

When he was 16, he first applied for birth registration and an ID document. Accompanied by an official from the centre where Khoza was living at the time, he met a Mr Phadagi, control immigration officer for the department of home affairs. Phadagi interviewed him and went to visit Khoza’s only surviving relatives, an aunt and the grandmother who had taken him to the care centre.

Afterwards, Phadagi issued a report in which he found that Khoza was born in SA, but that his family might have been born in Eswatini. On that basis, Khoza, and his relatives were to be deported, said Phadagi. However, he agreed not to arrest and deport Khoza if the manager of the care centre would go with the boy to the Eswatini border, armed with a letter from Phadagi.

At the border, Eswatini immigration officials refused to allow him into Eswatini, saying that the surnames of his grandmother and mother ‘were not from’ that country.

Prejudice

Back in Limpopo, Phadagi concluded that Khoza was ‘now a stateless person’. That began another frustrating round of attempts to get help, as officials of the department of home affairs simply failed to respond to letters explaining the situation and asking what to do next.

After all efforts to resolve the situation failed, Khoza contacted Lawyers for Human Rights whose staff began another series of mostly fruitless efforts to have officials deal with the problem and grant him citizenship.

In a moving section of his affidavit about the prejudice that he is suffering as a result of being stateless, Khoza says that because his birth hasn’t been registered, he can’t study, work legally, get married, get a driver’s licence, open a bank account or access any formal social assistance.

Vulnerable

Because he has no citizenship, he can’t be deported from SA to anywhere else. And if his birth isn’t registered ‘I will remain stateless indefinitely’, he said.

Without documentation, his employment is precarious and he constantly worries about losing his job.

‘My statelessness causes me severe stress. I am constantly afraid that I may be arrested or deported to a country where I am not a citizen and where I know no one. Being orphaned as a young child, I was left vulnerable and experienced great trauma. Being stateless and never having had the feeling of belonging exacerbates the effects of my early childhood trauma on my life.

‘The fact that I was orphaned and then abandoned by my grandmother without being registered in any country … is not of my own doing nor my fault.

Standstill

He and his caregivers had done everything possible to gain nationality. ‘My life is at a standstill. I cannot thrive or discover my potential for as long as I am stateless.’

He has a partner and they recently had a child. The son was registered under the mother’s name – Khoza could not be included on the birth certificate ‘because I am undocumented.’

Since he isn’t legally recognised as his child’s father he suffers great stress. He’d like to marry his partner, but even this is impossible without documentation. ‘This is very painful for me and my family.’

Promoted

He has been offered better work and development opportunities but can’t accept these offers because of his lack of legal status. Nor can he be promoted at work; instead, he has to go on working informally.

Apart from his personal background, the impact of being stateless and the steps he has taken to resolve the problem, another focus of his application is the failure of the Department of Home Affairs to provide a process through which he can apply for citizenship. A section of the Citizenship Act says the department should make regulations necessary to achieve the purposes of the law, but it hasn’t done so, even though the courts have several times ordered that this be done.

In the meantime, despite many efforts to comply with instructions from the department, ‘I remain undocumented, stateless and with no recognised citizenship or immigration status in SA, a position I have been in since my birth.’

Declare

What he asked of the court was to make an order instructing the minister of home affairs to register his birth. He also wants the court to declare he is a citizen of SA by birth or by naturalisation, and to instruct the minister to give him an identity number. Further, he wants the court to instruct the minister to ensure that regulations are issued, that will allow applications in cases like his, to be made.

The department, however, put up a strong fight against Khoza’s application, saying it lacked specifics and that various routes ought to have been followed after he was born, by his parents or others, so that proper documentation could have been acquired that detailed his birth.

The case was argued at the end of October, and judgment has been reserved.

Highlights

Nothando Shongwe of Lawyers for Human Rights (LHR), who has been dealing with his case, says it highlights the failure of SA’s current legal framework to address the issue of statelessness.

‘The SA Citizenship Act makes provision for children who are born in SA, and would otherwise be stateless, to acquire citizenship by birth. The Act also makes provision for children born in SA from non-citizen parent(s) to acquire citizenship through naturalisation if they have lived their whole lives in SA until the age of 18. However, SA has not established or published regulations that prescribe the administrative process to follow for submitting such applications.’

Shongwe said that all human beings have an inherent right to human dignity, yet being undocumented resulted in people being treated ‘in the most inhumane manner.’

Head of LHR’s statelessness project, Thandeka Chauke, added that Khoza’s case typified the problems experienced when someone was stateless. It also showed that the department of home affairs, which should have tried to help him, had done ‘nothing in the last 10 years.’

Carmel Rickard

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