South African Citizenship Amendment Bill [B17-2010]: public hearings

Home Affairs

16 August 2010
Chairperson: Mr B Martins (ANC)
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Meeting Summary

The Committee invited several organisations to present their views on the South African Citizenship Amendment Bill. These included the People against Suffering, Suppression, Oppression and Poverty (PASSOP), the Law Society of South Africa, and Lawyers for Human Rights.

The central issues raised by PASSOP were the need for citizenship to be granted to children born in South Africa regardless of the citizenship status of the child’s parents, the need to standardise the time required to be spent in South Africa by those seeking naturalised citizenship status, and the need to grant refugees the right to citizenship via marriage should circumstances arise where marriage takes place.

The Law Society of South Africa looked at loss of citizenship in detail and focused on language which was vague or ambiguous. The interpretation by the Department of the meaning of “continuous period” in Clause 5(b) was such an example. The Bill should make provision for citizens and permanent residents to keep their status where natural and unnatural causes forced them to stay out of the country for a period. The Society contended that although the Bill made provision for conditions under which a naturalised citizen could/should lose citizenship, the language around the loss of citizenship should be more specific.
LSSA raised several arguments about the ambiguity and harshness of Clause 6(a) of the Bill that proposes that a South African citizen shall cease to be a South African citizen if “.......he or she engages in a war under the flag of a country that the Government of the Republic does not support.”

The Lawyers for Human Rights submission focused on stateless, orphaned and abandoned children. It contended that the proposed Bill should provide specifically for the problem of children who did not have any recognition with regard to their citizenship. The organisation cited examples where states had made provision for these children. LHR contended that international law required this and noted that the UN Covenant on Civil and Political Rights declared that “every child has the right to acquire nationality”.

Members asked if easily granting citizenship status without properly assessing the veracity of someone’s right to citizenship created an added burden to the country in terms of government expenditure. People could cross into South Africa with the sole intention of giving birth to their children in the country with a view to benefiting from state welfare. Likewise reducing the time needed to acquire citizenship would be detrimental to South Africans who were in need of the state’s constrained resources. Some Members also expressed disquiet over granting citizenship to stateless children found in South Africa and the encouragement that this would give illegal immigrants.

Meeting report

People against Suffering, Suppression, Oppression and Poverty (PASSOP) submission
Mr Braam Hanekom, PASSOP Coordinator, highlighted the importance of the law taking into consideration the less privileged and weak in society including asylum seekers. The organisation proposed that the Bill take into account children who were born on South African soil as citizens as opposed to merely recognising such children if one of the child’s parents was a South African citizen. Mr Hanekom said that this was important to provide humanity to stateless children who would not be considered for citizenship under the proposed Bill.

PASSOP submitted that the proposed Bill should standardise the time requirement for refugees seeking permanent residence and permanent residents seeking naturalised citizenship. The organisation proposed that this period should be 5 years rather than the current preset time period of 10 years for refugees and 9 years for permanent residents.

The organisation submitted that the Bill should make allowances for refugees to receive citizenship via marriage should they marry a South African citizen and remain married for a period of one year. They proposed that a permanent resident who married a South African citizen should have to be married for a period of a year as opposed to the two years proposed by the Bill.

Discussion
Mr M Mnqasela (DA) said that Mr Hanekom had spoken well on behalf of his organisation but that his presentation had been a case of morality over legality. He said that easily granting citizenship status without properly assessing the veracity of someone’s right to citizenship created an added burden to the country in terms of government expenditure. There were serious problems posed by granting citizenship to someone born in the country to foreign parents as this would be a burden to government. People could cross into South Africa with the sole intention of giving birth to their children in the country. He suggested that the Bill should take into account the time spent in the country by refugees seeking asylum prior to seeking official recognition of their status. 

Mr Hanekom said that he did not mean to suggest every refugee in South Africa should be granted citizenship, rather he argued that those born in the country should be granted the right to claim their citizenship. The issue of people being granted refugee status was in itself contentious as not enough people were granted that recognition. 

Ms M Maunye (ANC) said that it was important to remember that South Africa was still a young and developing state and that its citizenry were already struggling to gain access to state resources, let alone the addition of more burdens on that citizenry with the recognition of new citizens. She asked Mr Hanekom how PASSOP thought the government could handle this burden. She asked whether PASSOP interacted or worked with the United Nations High Commission for Refugees (UNHCR) and whether they assisted the organisation.

Mr Hanekom reiterated his earlier point in response to Mr Mnqasela, that he did not mean to say that every refugee deserved to be granted citizenship status but rather those born in the country should be given the opportunity to be citizens. They would have been born in the country regardless of the citizenship status of their parents. He said that PASSOP had worked with the UNHCR in the past and would work with the organisation in the future. He highlighted however that the UNHCR limited its assistance and work to refugees as stipulated by its rules defining what, in its view, constituted a refugee. He recognised that Home Affairs and the citizenry had problems but those problems should be separated from the work of granting citizenship and granting status to the disenfranchised.

Ms T Gasebonwe (ANC) said that in her view the stipulated period in the Bill for gaining citizenship through marriage was appropriate as a means of preventing fraudulent unions. Such unions were formed mainly to gain citizenship for refugees and naturalised citizens.

Mr Hanekom said that PASSOP was against fraudulent marriages to gain citizenship. However where a union was genuine, it was imperative that citizenship be granted to the non-citizen in as short a time as possible. In PASSOP’s view this was a period of one year rather than two. 

Law Society of South Africa (LSSA) submission
Mr William Kerfoot, LSSA representative, suggested that “marriage” be replaced with ‘in a spousal relationship’. He also referred to
‘marriage’ as used in Section 5 of the principal Act where it provides that a foreigner, who is married to a South African, qualifies for naturalisation if married and resident in SA for two years. The prescribed period as set out in section 5(5)(a) of the principal Act as two years, is absent from the Amendment Bill which refers only to ‘a prescribed period’. LSSA suggested that the status quo be maintained, namely that the two-year period remain intact.

The interpretation by the Department of the meaning of “continuous period” in Clause 5(b) was discussed. The Bill should make provision for citizens and permanent residents to keep their status where natural and unnatural causes forced them to stay out of the country for a period. The LSSA pointed out that the Department of Home Affairs had developed a practice whereby the definition was interpreted literally which led to a meaning quite different from 'ordinary’ residence.

The effect of that interpretation served to prevent permanent residents from seeking naturalisation where they have been absent from the country for periods of just a matter of months where their employers may have sent them overseas or they had been forced by, for example, financial circumstances, in order to support their families, to seek temporary employment overseas or pensioners who visit their children overseas during South Africa's winter months.

The LSSA therefore proposed that the term 'continuous' be deleted in Section 5 of the principal Act or alternatively, clarify the position by providing a definition of the term 'continuous'.

The LSSA pointed out that clause 6(a) of the Bill which proposed that a South African citizen shall cease to be a South African citizen if "...he or she engages in a war under the flag of a country that the Government of the Republic does not support.", was radical departure from the present section 6(1)(b) in the principal South African Citizenship Act. Section 6(1)(b) of the principal Act already provides for the automatic deprivation or lapsing of citizenship where, in certain circumstances, a citizen engages in a war against the Republic.

The LSSA proposed that the clause must make it clear that the term 'does not support' is intended to qualify the 'war' or the 'country' as an unintended consequence of the clause could lead to the loss of citizenship. There was no provision for a prior hearing or decision of a functionary. Section 20 of the Bill of Rights provides that 'no citizen may be deprived of citizenship'. LSSA therefore recommended strongly that the status quo in respect of section 6(1) of the principal Act be retained in its current form.

The LSSA made further presentations on clearing up some of the ambiguous language pertaining to other minor issues addressed in the Bill such as issues of automatic loss of permanent residence and conditions under which this would occur. Mr Kerfoot added that the Department of Home Affairs should rather consider it a crime to serve in a militia or private rather than impose a loss of citizenship on someone.


The phrase voluntary and formal act’ – contained in South African Citizenship Act needed to be defined.

Where the citizenship of another country is acquired as a result of marriage to a foreigner, the South African citizen should not South African citizenship

Where a South African citizen has citizenship by virtue of section 6 of the 1995 Act, he/she retains right to permanent residence as a ‘birthright’. This practice was, however, not confirmed anywhere in the Citizenship Act.


The submission also looked at
dual nationality and the issue of automatic loss. South Africans should not lose their South African citizenship where they acquire a foreign citizenship as a result of family or ancestral linkages  while still in South Africa.

Discussion
Mr Mnqasela said that the LSSA’s submission was substantive and he welcomed the recommendations made. He said the Committee would study the recommendations closely. He asked whether minors who were under the age of majority were precluded from entering university due to their ineligibility to apply for an identification document. He commented that economic asylum seekers who sought refuge in South Africa needed to be honest about their reasons for seeking refuge.

Mr Kerfoot replied that minors were eligible to apply for an identification document when they reached the age of 16 thus they were eligible for university entrance from that age pending the matric exams. Lowering the age of majority to 17 would greatly assist with administrative issues. Currently people had to be 18 to be processed in certain administrative instances.

Ms Z Balindlela (COPE) said that the Bill of Rights as well as children’s rights needed to be considered whilst considering the proposals made by the Bill. The Committee should take up LSSA’s recommendations on lowering the age of majority to 17 in order to improve some of the administration problems that arose from some citizens not being recognised until the age of majority. She was happy that LSSA had given its input on these important issues.

Ms D Mathebe (ANC) asked what would happen to someone who was married in one country and then came to South Africa and married a citizen of this country.

Mr Kerfoot said that being married to two different people in two separate countries was still illegal and considered to be bigamy which was a crime under law. On the matter of gaining citizenship through marriage , he said that the marriage should be first assessed for veracity and level of genuineness. If the marriage was genuine, then provision should be made to let it stand.

Ms Maunye asked when a person might apply for an identity document.

Mr Kerfoot replied that the age was 16 when a person may apply for an identity document.

Lawyers for Human Rights (LHR) submission
Ms Kajaal Ramjathan-Keogh, Head of LHR’s Refugee and Migrant Rights Programme,
requested further development of provisions for the naturalisation of particular categories of stateless children, especially a provision for the naturalisation of a stateless orphan or abandoned child. The proposed Bill should have sections dealing specifically with the problem of such children. The LHR used precedents in international law which made it fundamental for every child to be recognised under law and granted citizenship. The organisation cited the UN Covenant on Civil and Political Rights which declared that “every child has the right to acquire nationality”. The LHR wanted the granting citizenship to children that were born of parents who were not South African yet found themselves in South Africa devoid of any official status or recognition.
 
Discussion
Mr Mnqasela said that the difficulties with granting citizenship to orphaned, abandoned or parentless children was that it set a precedent which might encourage people to flood into the country to give birth to children who would then be eligible to receive South African welfare should they receive South African citizenship status. The Committee’s job was to take into account both the positives and negatives of the Bill and find a balance which was considerate of all arguments. LHR’s proposal was substantive and the Committee would consider it properly prior to the Bill being voted on.  

Ms Ramjathan-Keogh said that the LHR was recommending the adoption of parentless children as opposed to the concept of rewarding of foreign parents who gave birth to children in South Africa with a view to benefiting from state welfare.

Ms Balindlela asked if the LHR had taken into account the current adoption laws in the country in making their submission on the Bill.

Ms Ramjathan-Keogh replied that the LHR had not considered the adoption laws but said that parentless children would not be looked after under the laws in any case. 

Ms Maunye asked whether the LHR interacted with the children it looked after.

Ms Ramjathan-Keogh replied that the LHR did have interaction with the migrant children it looked after.  

Mr Mnqasela reiterated that fraudulent entry under false pretences into the country may occur in order to give birth to children who would be used to abuse state welfare.

Ms Ramjathan-Keogh replied that whatever the outcome of the debate on the Bill with regard to abandoned children, it should be in their best interests.

Written submissions were also sent to the Committee by the Commission for Gender Equality and the Citizenship Rights Africa Initiative, these were not commented on by members.  

The meeting was adjourned.

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