Question NW1677 to the Minister of Home Affairs
08 June 2023 - NW1677
Roos, Mr AC to ask the Minister of Home Affairs
(1) Whether, regarding the judgment of Khoza v Minister of Home Affairs & One Other in the Pretoria High Court, Case No. 6700/2022, (a) he has found his department to be in contempt of court for not making the regulations to the SA Citizenship Act, Act 88 of 1995, available on registration of potentially stateless children of undocumented migrants; if not, what is the position in this regard; if so, what are the relevant details; (2) What (a) are the remaining steps and processes that must be undertaken to finalise the required regulations and (b) current process is in place to accept and adjudicate applications for citizenship made on affidavit on behalf of stateless children under section 2(2) of the specified Act?
Reply:
1. The Minister is not in contempt of court. The High court ordered as follows:
1. Directing the First Respondent to register the Applicant’s birth in terms of the Births and Deaths Registration Act, 51 of 1992, as amended, within 30 (thirty) days of this order.
2. Declaring the Applicant to be a South African citizen by birth in terms of section 2(2) of the South African Citizenship Act, 88 of 1995, as amended (“the Citizenship Act).
3. Alternatively, declaring the Applicant to be a South African citizen by naturalisation in terms of section 4(3) of the Citizenship Act.
4. Directing the First Respondent to enter the Applicant into the National Population Register as a citizen, to issue him with an identity number and to amend and re-issue his birth certificate accordingly, within 30 (thirty) days of this order.
5. Directing the First Respondent to accept and adjudicate applications in terms of section 2(2) on affidavit pending the promulgation of regulations.
6. Ordering the Respondents to pay the costs of this application on an attorney and client scale, jointly and severally, the one to pay the other to be absolved, which costs will include the costs consequent upon the employment of 2 (two) Counsel.”.
As the High Court did not make any order setting aside section 2(2) of the South African Citizenship Act, 1995 (Act No. 88 of 1995), the Minister has not, therefore, been ordered to make regulations with regard thereto and cannot, therefore be in contempt of the court order.
(2)(a) However, the department is in the process of finalising the drafting of the regulations in order to provide a Form as per the order in Minister of Home Affairs vs Ali [2018] ZASCA 169; 2019 (2) SA 396 (SCA). Once the Minister has approved the Regulations, they will be published in the government gazette for implementation.
(2)(b) Currently, the department accepts and processes applications submitted in an affidavit in line with the Pretoria High Court.
END