Mulowayi v Minister of Home Affairs

The applicants, a Congolese refugee couple and their minor child, were granted permanent residence in South Africa in 2011. They were advised by Department of Home Affairs officials that they could apply for South African citizenship after five years’ residence and that they needed to renounce their Congolese citizenship, which they did. When they applied for naturalisation in 2016, their applications were rejected on the basis of regulation 3(2)(a) of the Regulations under the South African Citizenship Act, 1995, which required ten years’ ordinary residence. As a result of the rejection and prior renunciation, the parents became stateless. Their child, Gaddiel, born in South Africa and registered under the Births and Deaths Registration Act, was also not recognised as a citizen and was stateless. The High Court declared regulation 3(2)(a) unconstitutional and invalid but suspended the declaration pending confirmation by the Constitutional Court.

The application for confirmation of invalidity was refused as superfluous; leave to appeal was granted; the appeal was upheld; and the High Court’s order suspending the declaration of invalidity of regulation 3(2)(a) was set aside. No order as to costs was made.

The case clarifies that declarations of invalidity of regulations do not require confirmation by the Constitutional Court, reinforcing the distinction between primary and subordinate legislation under section 172 of the Constitution. It underscores the requirement that regulations must be consistent with their empowering statutes and highlights the constitutional implications of citizenship administration, particularly the risk of statelessness and the protection of children’s rights.