South African Citizenship Amendment Bill: Department's response to public submissions

Meeting report

South African Citizenship Amendment Bill [B17-2010]: Deliberations
The Committee and the Department of Home Affairs discussed the submissions made during the public hearings on the South African Citizenship Amendment Bill (the Bill).

Department of Home Affairs (DHA) comment on Law Society of South Africa submissions
Advocate Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, responded to the submission of the Law Society of South Africa (LSSA). LSSA had recommended that the Department of Home Affairs (DHA or the Department) should change the term ‘marriage’ in Clause 5 of the Bill to ‘in a spousal relationship’. The Department would now include a broad definition of ‘marriage’ to accommodate all forms of marriage recognised under current South African law, whether these were single-sex or heterosexual unions. The Department stressed that that clause would be worded so it was non-discriminatory in recognition of all marriages.

Mr M Mnqasela (DA) commented that the Department should try to make the language in the Bill simpler, so that ordinary citizens would be able to understand the provisions.

The Chairperson concurred with Mr Mnqasela’s point and asked that the Department should look into simpler and more easily-read drafting.

Advocate Erasmus said that the Department would make the language as simple as possible, without altering the legal meaning.

Adv Erasmus then dealt with the recommendation that a clearer definition be provided of what constituted a loss of naturalised citizenship status. He emphasised that where a naturalised citizen left the country for a prolonged period of time, owing to work constraints or other pressing needs, those needs would be taken into consideration. The provision in the Bill stating that naturalised citizens could lose their status if they were not in the country for a continuous period would not apply if there were extenuating circumstances. Advocate Erasmus said that the definition of a ‘continuous period’ would be clarified in the regulations of the Bill.

The Chairperson said that it was important that the Department informed the Committee about the regulations for the Bill while there was time to make alterations, rather than the regulations being drafted but the Committee only being consulted afterward. This was necessary to test whether the regulations were in line with the intention of the Bill.

Mr Gideon Hoon, State Law Adviser, Office of the Chief State Law Adviser, said that the Minister of Home Affairs would have to be empowered to make regulations in the South African Citizenship Act, if the intention was to have further interaction before the regulations were drafted.

Mr Luvo Vena, Legal Officer, Department of Home Affairs, cautioned against moving substantive provisions from the South African Citizenship Act to the regulations for the Bill.

Mr Mnqasela still said that the Committee should have time to debate the regulations before they were drafted.

The Chairperson reminded Members that there would be more opportunities to give input on the regulations in order to ensure that they would reflect what the Committee intended.

Advocate Erasmus said that the Minister was empowered to make regulations and the Department would provide further opportunity for debate on the regulations.

Advocate Erasmus then addressed the issue raised in the LSSA submission proposing that the age of majority be lowered to seventeen years of age. The Department had decided to keep the age of majority in the Bill at eighteen years of age, in keeping with the Children’s Act, which stipulated the age of majority as eighteen.

Ms M Maunye (ANC) and the Chairperson asked what the current situation was, and would happen to children who were below the age of majority, were eligible to write matric exams, but did not possess an identification document.

Mr Gene Kritzinger, Director, Department of Home Affairs,  responded that a child who had not reached the majority age of eighteen, and who was of foreign origin, would be assisted by the DHA, in conjunction with the Department of Education, through provisions in the Immigration Act. He said that permanent residents were eligible to receive identity documents, which had a valid South African Identity number but specified that they were not citizens.  Once a child turned sixteen, he or she could apply for an identity document, so there should not be any hindrances for those under eighteen who did have proper documentation.

The Chairperson said that the issue was broader, and would require discussion with the Portfolio Committee on Education and the Department of Basic Education.

Mr Thomas Sigama, Director:Legal Services, Department of Home Affairs, added that birth certificates were issued with identity numbers, so that the number reflected on the ID document, once the child had reached sixteen years of age, was the same as the number on the birth certificate.

The Chairperson said that the issue of age of majority was pertinent to the Bill.

Advocate Erasmus then addressed the submission relating to the naturalisation provisions of the Bill. The Department conceded the point, and would rectify the wording so that it was concise and clear.

Adv Erasmus noted that a submission had been made on the loss of citizenship, in Clause 6. The Department would consider revoking a person’s citizenship should that person participate in a war which was not supported by the Republic.

Mr Mnqasela said that the wording in the Bill, relating to the Department’s power to revoke citizenship if a naturalised citizen were to participate in a war that was not supported by the Republic, should be clear and unambiguous. He thought it might be unconstitutional to revoke a person’s citizenship, even where that person was a naturalised citizen. He sought clarity on the use of the word ‘support’ in the Bill, specifically in relation to the Republic ‘supporting’ a war.

The Chairperson said that where South Africa had participated or sent soldiers into war zones, it had done so in a peacekeeping capacity. He said that in some cases South African citizens went into war stricken areas to carry out work, not necessarily to fight under a foreign flag. For these reasons, the clauses in the Bill relating to loss of citizenship needed to be very clear, to avoid the possibility of misinterpretation.

Advocate Erasmus clarified that a war would be ‘supported’ by the Republic if there was a Cabinet declaration to this effect.

The Chairperson said that ultimately a war could only be declared by the Commander-in-Chief, and not by a Minister.

Advocate Erasmus said his Department would take on board and consider the comments offered by the Committee. The loss of citizenship clause was merely a guideline for the Department, and did not necessarily dictate that a loss of citizenship was guaranteed if a naturalised citizen were to participate in a war that was not supported by the Republic.

The Chairperson asked for comment from the State Law Advisers whether Clause 6 was deemed constitutional.

Mr Hoon said that the State Law Advisers had deemed the Bill in its entirety to be constitutional. This clause was considered constitutional, as it related to loyalty to the Republic.  

Mr Mnqasela requested that any amendments to Clause 6 be sent to the Committee in writing.

The Chairperson commented that the issue was of a very sensitive nature and should be considered carefully.

Advocate Erasmus then addressed the provision that a person who held South African and foreign citizenship, and resided in South Africa, may be required to renounce his or her citizenship of the other country, if that country did not permit dual citizenship.  The Department stipulated that South Africa allowed dual citizenship, but if another country did not, then the foreign citizenship would have to be renounced.

DHA Comment on Citizenship Rights Africa Initiative submission
Mr Thomas Sigama, Director: Legal Services, Department of Home Affairs, addressed the proposals submitted by the Citizenship Rights Africa Initiative, relating to all children born in South Africa deserving citizenship. The Department clearly highlighted that only those children born to parents of whom one or both held South African citizenship would be considered citizens. The Department would also consider children adopted by South African citizens as being citizens by descent, regardless of their previous status. The Department reiterated that a child who was born to parents who held permanent residence status would become a citizen upon reaching the age of majority in the country, but only if that child had not left the country for a continuous period.

DHA comment on Lawyers for Human Rights submission
Mr Vena dealt with the proposals made by Lawyers for Human Rights (LHR), regarding the granting of citizenship to stateless or parentless children. The Department responded that parentless or vulnerable children would be taken care of according to provisions made by the Immigration Act and the Refugees Act. Such children would be referred to the Department of Social Development, which would be best equipped to deal with them. DHA emphasised that citizenship would not be granted to any child who was abandoned and vulnerable, but rather that due processes would be followed.

Mr Mnqasela was pleased to hear that the Department would not simply give out citizenship to any and all vulnerable children, and that proper processes would be followed.

DHA comment on PASSOP submission
Advocate Erasmus addressed issues raised in the People against Suffering, Suppression, Oppression and Poverty (PASSOP) submission. On the issue of giving citizenship to people born in the country to foreign parents, the Department clearly stipulated that the provisions in the Bill would be followed explicitly, so that a child born in the Republic would have to go through proper processes and reside in the country until reaching the age of majority before being granted citizenship. The Department would only grant citizenship to a non-citizen who was married to a South African, after the marriage had lasted for a period of two years, and there were no exceptions to this rule. The Department stated that it would not alter the standardised five-year period of awarding citizenship to permanent residents, as recommended by PASSOP.

Mr Mnqasela urged the Department to be mindful of the fact that the issuing of permits took time and non-citizens may wait for a prolonged time before being granted a certain permit or status. He said that there were still difficulties in assessing the veracity of certain marriages.

The Chairperson said that in discussing the Bill, the Committee and the Department had to balance reality against idealism.

Advocate Erasmus acknowledged that there were shortcomings with regard to granting of status and permits, and that there was a linkage problem between some spheres of government in addressing that issue. He said that it was necessary to draw a clear distinction between economic migrants and genuine asylum seekers.

The meeting was adjourned.