The Minister of Home Affairs and Others v Jose and Another

The respondents, Joseph Emmanuel Jose and Jonathan Diabaka Jose, are brothers born in South Africa in 1996 and 1997 to Angolan parents who were asylum seekers and later recognised refugees. The respondents have lived in South Africa since birth and have never lived in Angola. Their births were registered with the Department of Home Affairs, and birth certificates were issued. After the withdrawal of Angolan refugee status in 2014, they were compelled to obtain Angolan passports to remain lawfully in South Africa. Assisted by Lawyers for Human Rights, they applied for South African citizenship under section 4(3) of the South African Citizenship Act 88 of 1995. The Department of Home Affairs failed or refused to grant citizenship. The Gauteng Division of the High Court ordered the Minister to grant citizenship. The Department appealed solely on whether the court was competent to order the Minister to grant citizenship rather than remit the matter for consideration.

The appeal was dismissed. The order of the High Court directing the Minister of Home Affairs to grant South African citizenship to the respondents was upheld. The appellants were ordered to pay costs, including the costs of two counsel, on an attorney-and-client scale for costs incurred after 2 August 2020.

This judgment affirms that citizenship under section 4(3) of the South African Citizenship Act is not discretionary but a question of law. It confirms the power of courts to substitute their own decisions and order the granting of citizenship where statutory requirements are clearly met, reinforcing accountability of the Department of Home Affairs and strengthening protections against statelessness.