Mulowayi v Minister of Home Affairs

The applicants, Mr and Mrs Mulowayi, were refugees from the Democratic Republic of Congo who were granted permanent residency in South Africa in 2011. They had three children born in South Africa. The first two children, Hadriel and Yokheved, were recognized as South African citizens by birth and issued identity numbers. The third child, Gaddiel, born on 14 March 2017, was not recognized as a citizen despite being registered under the Births and Deaths Registrations Act. In 2015, following advice from Home Affairs officials that the qualification period was five years, the couple renounced their Congolese citizenship. They applied for South African citizenship in 2016. On 24 October 2016, their applications were rejected in terms of regulation 3(2)(a) which required 10 years of permanent residence, despite section 5(1)(c) of the South African Citizenship Act prescribing only five years. As a result of renouncing their Congolese citizenship, the couple became stateless, and Gaddiel was also rendered stateless as his parents were not South African citizens at the time of his birth.

• Whether regulation 3(2)(a) of the Regulations on the South African Citizenship Act, which prescribed a 10-year period for citizenship by naturalization, was ultra vires section 5(1)(c) of the Act which prescribed five years
• Whether the High Court correctly suspended the declaration of invalidity of the regulation pending confirmation by the Constitutional Court
• Whether declarations of invalidity concerning regulations (as opposed to Acts of Parliament) require confirmation by the Constitutional Court under section 172(2)(a) of the Constitution
• Whether the child Gaddiel's rights under section 28(1)(a) of the Constitution (right to a nationality) were violated

1. Condonation granted. 2. Application for confirmation of the declaration of invalidity of regulation 3(2)(a) of the Regulations on the South African Citizenship Act, 1995 refused on the basis that it is superfluous. 3. Leave to appeal granted. 4. Appeal upheld. 5. The order of the High Court suspending the declaration of invalidity of regulation 3(2)(a) of the Regulations on the South African Citizenship Act, 1995 set aside. 6. No order as to costs.

Declarations of invalidity concerning regulations made by Ministers under delegated authority pursuant to Acts of Parliament do not require confirmation by the Constitutional Court under section 172(2)(a) of the Constitution. Section 172(2)(a) applies only to orders invalidating Acts of Parliament, provincial Acts, or conduct of the President. Regulations are not Acts of Parliament as Ministers exercise subordinate, delegated authority when making regulations. A High Court order suspending a declaration of invalidity of a regulation pending confirmation by the Constitutional Court is made in error and should be set aside to provide effective relief to affected parties.

The Court noted that the High Court had correctly found regulation 3(2)(a) to be ultra vires section 5(1)(c) of the South African Citizenship Act because it extended the minimum qualifying period from five years to ten years without statutory authorization. The Court observed that the respondents' argument that the child Gaddiel could wait until age 18 to apply for citizenship was not in accordance with the constitutional right of a child to nationality under section 28(1)(a). The Court also commented on the practical consequences of statelessness, noting that the continuation of the invalid regulation would be an obstacle to the applicants and others in similar circumstances. The Court emphasized the importance of providing effective relief, particularly where children's rights are adversely affected and where delays in finalizing matters prejudice applicants who remain stateless.

This case is significant in South African constitutional law for clarifying the scope of section 172(2)(a) of the Constitution regarding when declarations of invalidity require confirmation by the Constitutional Court. It establishes definitively that only declarations of invalidity concerning Acts of Parliament, provincial Acts, or conduct of the President require confirmation - not regulations made by Ministers under delegated authority. The case reinforces the principle established in Liebenberg and provides important guidance on appropriate remedies when High Courts erroneously suspend declarations of invalidity of regulations. The case also highlights the constitutional protection of children's rights to nationality under section 28(1)(a) of the Constitution and the serious consequences of statelessness. It demonstrates the Court's willingness to intervene to ensure effective relief where erroneous suspension orders prevent applicants from accessing their constitutional rights.