The magnitude of childhood statelessness in Southern Africa is both staggering and largely concealed. UNICEF’s data reveals that a shocking 12 million children under the age of five in the region are unregistered at birth, and 19 million do not have a birth certificate. While South Africa’s birth registration rate is just above 90%, these statistics mask a stark reality among highly vulnerable children who face systemic exclusions. They include children who have been orphaned or abandoned (including foundlings), children living in rural areas, children of refugees or undocumented migrants, and children who are born stateless.
Lack of birth registration, particularly the lack of a birth certificate, is one of the primary drivers of childhood statelessness in Southern Africa. A birth certificate is a child’s first legal identity document, providing proof of two critical factors in establishing their nationality: place of birth and parentage. Lack of birth registration has case numerous children, like Tebogo Khoza, into the shadows of statelessness, rendering them virtually “invisible” throughout their childhood and into adulthood.
Tebogo’s story
Tebogo’s life story represents a poignant example of the hardships endured by many stateless children. He was born in South Africa in 1997 and has lived in the country his whole life. Tebogo’s birth was never registered because his mother died when he was a young child, and he has never known his father. His mother was given a pauper’s burial, and soon after, his grandmother took him to a Child and Youth Care Centre (CYCC) in Limpopo, where he was raised.
At the age of 16, social workers at the CYCC initiated a process to register Tebogo’s birth. However, what should have been a straightforward administrative procedure became a decade-long struggle for identity and belonging. With the little resources available to him, Tebogo tried his best to gather as much information about his personal history as possible to present to the Department of Home Affairs (DHA) for registration.
He underwent a series of interviews and participated in an investigation led by a DHA official. This investigation confirmed that he was indeed born in South Africa, but his parentage had allegedly been traced to Eswatini. In a determined effort to verify his Swati citizenship, Tebogo attempted to visit Eswatini but was denied entry at the border after the authorities denied any possibility of Swati citizenship
In the face of DHA’s continued and obstinate refusal to assist him, Tebogo approached the Children’s Court, which subsequently referred him to Lawyers for Human Rights (LHR) as he was now deemed a stateless child.
Court challenge
LHR launched an application in the High Court in 2022, seeking an order compelling the DHA to register Tebogo’s birth, to grant him citizenship, and to issue him identity documents. The resulting judgment, delivered in February 2023 by Acting Judge S M Maritz, marks a watershed moment in the battle against childhood statelessness in South Africa.
The DHA contended that Tebogo was not entitled to the relief sought, due to his inability to provide a detailed timeline of his life from the day he was born to date, including “a thorough and concise chain of events”. Additionally, DHA took issue with the fact that Tebogo had no documentary evidence to prove that he was born in South Africa. The court dismissed these contentions as “absurd” and “nonsensical” given that Tebogo sought DHA’s help precisely because he was undocumented.
The court affirmed that there was no legal basis for DHA to demand such an arduous process. Moreover, DHA had chosen to disregard the investigation report produce by its own official in 2015, which confirmed that Tebogo was indeed born in South Africa and was stateless.
Inflexible
The court concluded that the DHA had shown itself to be “inflexible” and “oppositional” in assisting Tebogo, despite his earnest efforts to meet the DHA’s requirements and to provide all the relevant information at his disposal. The court emphasised that “the Department’s mandate is not to pose as a barrier to recognition of citizenship especially not with frivolous and contrived disputes”, and the DHA should deploy the full machinery of the state at its disposal to investigate cases of childhood statelessness fully and adequately and to assist stateless children in Tebogo’s situation.
While South Africa’s Constitution guarantees a child’s right to a name and a nationality, Tebogo’s case demonstrates how DHA often imposes onerous and arbitrary requirements that frustrate the realisation of this right and leave many vulnerable children undocumented and at risk of statelessness.
This form of administrative obstructionism is an attack on the child’s right to a name and a nationality as children who cannot meet DHA’s requirements are essentially rendered stateless, “invisible”, and deprived of fundamental human rights such as the right to education, to health care, to work, or to social assistance. The judgment rightfully notes that class and race disproportionately define who is affected: “There is undoubtedly a disproportionate severity of such consequences for children from indigent families.”
Burden of proof – clarification
For the first time in South African law, the judgment provides much-needed clarity on the burden and standard of proof in statelessness cases. The court adopted the UNHCR’s recommendation that the burden of proof in statelessness determination should be shared between the applicant and the decision-maker and that a low standard of proof – ‘to a reasonable degree’ as opposed to ‘beyond a reasonable doubt’ - should be applied in evaluating a statelessness case. (This approach is also confirmed in the 2020 decision of the UN Human Rights Committee in Zhao v Netherlands).
The rationale is that the very nature of being stateless precludes the stateless person from providing documentary evidence to support their claim. Stateless people are more often than not undocumented, with no legal record of their existence. Stateless people also lack the resources to conduct thorough investigations into their nationality and even when inquiries are made with authorities they are often ignored. Moreover, stateless children who are orphaned or abandoned and without parents or family members to assist them in these processes face even greater limitations. In such cases, the State has a higher duty of care and responsibility to assist the child.
The judgment further underscored the DHA’s intransigence and opposition to assisting Tebogo, despite his efforts to comply with their requirements and provide all available information. The court found that DHA had been supine in meeting its own evidentiary burden and had acted solely to discredit Tebogo's version of events through misleading speculation and “creating fictitious standards of proof ”.
Government failure to legislate: court lays down way forward
South Africa's Citizenship Act, Section 2(2), holds the promise of granting citizenship to children born in the country who would otherwise be stateless. This law has been in existence since 1995 but remains unimplemented due to the DHA's failure to enact regulations that 1) prescribe the process to be followed by administrators in identifying stateless children and 2) provide the relevant application form to be used by eligible applicants. The result is an untenable situation where children in Tebogo’s position are forced to remain stateless indefinitely
There are already two court orders in which DHA was ordered to pass regulations on citizenship applications:
- On 3 July 2014, the High Court in DGLR v Minister of Home Affairs ordered the Minister to make regulations in relation to Section 2(2) of the Citizenship Act. This order was confirmed by the Supreme Court of Appeal and DHA was required to comply with the order by March 2018.
- On 30 November 2018, the Supreme Court of Appeal in Minister of Home Affairs v Miriam Ali ordered the Minister to make regulations in relation to Section 4(3) of the Citizenship Act and to comply with the order by November 2019.
The Minister has not complied with any of these orders to date and is thus in contempt of court.
Recognizing the importance of these legal safeguards for stateless children like Tebogo, the high court granted additional relief sought by LHR, compelling DHA to accept and adjudicate Section 2(2) citizenship applications on affidavit, pending the promulgation of the regulations.
Conclusion
This judgment stands as a triumph, not just for Tebogo, but for all stateless children in South Africa.
South Africa is urged to expedite the judgment's implementation by enacting necessary regulations, establishing a nationality and statelessness determination procedure, and ensuring all unregistered children in South Africa can access birth certificates and identity documentation. No child should endure the suffering of statelessness or the denial of their right to a name and nationality.