The Minister of Home Affairs and Others v Jose and Another

The respondents, Joseph Emmanuel Jose and Jonathan Diabaka "Junior", are brothers born in South Africa in 1996 and 1997 respectively at Coronation Hospital. Their parents are Angolan citizens who fled Angola in 1995 and sought asylum in South Africa. Both respondents were granted refugee status in 1997 under the Refugees Act 130 of 1998. The brothers lived their entire lives in South Africa. In 2014, when they were minors attending Barnato Park High School, they were informed their refugee status had been withdrawn pursuant to a repatriation process. To remain lawfully in South Africa, they were compelled to apply for Angolan passports via the Angolan Embassy. Neither brother had ever been to Angola, had no family there, spoke no Portuguese and only a little Lingala. After experiencing difficulty obtaining identity documents from the DHA, they sought assistance from Lawyers for Human Rights, who advised them they were eligible to apply for citizenship under section 4(3) of the South African Citizenship Act 88 of 1995. When efforts to obtain citizenship failed by August 2017, they approached the Gauteng Division of the High Court, Pretoria. The high court (per Yacoob J) ordered the Minister to grant their applications for citizenship within 10 days. The DHA appealed.

• Whether the court was competent to order the Minister to grant (as opposed to merely consider) the respondents' applications for citizenship in terms of section 4(3) of the South African Citizenship Act 88 of 1995
• Whether all four requirements of section 4(3) were met: birth in South Africa; parents not South African citizens or permanent residents; lived in South Africa from birth to majority; birth registered in terms of the Births and Deaths Registration Act 51 of 1992
• Whether citizenship constitutes a discretionary decision or a question of law
• Whether remittal to the decision-maker was appropriate or whether the court could grant the relief directly
• Whether punitive costs on an attorney-client scale were warranted

The appeal was dismissed with costs on a scale as between attorney and client after 2 August 2020, including costs of two counsel. The high court's order directing the Minister to grant the respondents South African citizenship in terms of section 4(3) of the Citizenship Act within 10 days was confirmed.

Where all four statutory requirements in section 4(3) of the South African Citizenship Act 88 of 1995 are clearly satisfied—namely (i) birth in South Africa, (ii) parents who are not South African citizens or permanent residents, (iii) continuous residence in South Africa from birth to majority, and (iv) birth registered in terms of the Births and Deaths Registration Act 51 of 1992—citizenship does not depend on a discretionary decision but constitutes a question of law. In such circumstances, a court may order that citizenship be granted directly without remitting the matter to the executive decision-maker. For non-South African citizens sojourning temporarily in South Africa, the issuing of a birth certificate under section 5(3) of the Births and Deaths Registration Act constitutes registration of the birth for purposes of section 4(3) of the Citizenship Act. The doctrine of separation of powers does not preclude courts from giving directions to the executive where citizenship is concerned, as the DHA is required to recognize citizenship and proceed with administrative procedures where the requisite conditions are satisfied, without any further consideration or exercise of discretion.

The Court observed that citizenship is not merely a legal status but goes to the core of a person's identity, their sense of belonging in a community, and their security of person, particularly where xenophobia is a lived reality. Deprivation or interference with citizenship affects private and family life, choices about home, employment, schooling, community participation, political participation, and freedom of movement. The Court noted that matters concerning citizenship are not appropriate for technical point-taking, particularly technical points without legal merit. The Court observed that courts of appeal with congested rolls should spend their time and resources on real disputes, and by persisting in obviously unmeritorious appeals, organs of state deny deserving litigants access to justice. While the Court discussed the circumstances in which personal costs orders may be made against public officials (requiring bad faith or gross negligence), it determined that those requirements were not met in this case. The Court quoted Hannah Arendt's observation that citizenship is more fundamental than civil rights and that stateless persons are "expelled from humanity," emphasizing the profound human implications of citizenship determinations.

This judgment is significant in South African citizenship law as it clarifies that where all statutory requirements for citizenship under section 4(3) of the Citizenship Act are satisfied, the grant of citizenship is not a discretionary decision but a question of law that courts can determine directly without remittal to the executive decision-maker. The judgment reinforces the principle established in Minister of Home Affairs v Ali [2018] ZASCA 169 and confirmed in Chisuse [2020] ZACC 20 that section 4(3) is a self-standing section that applies even to persons born before it came into operation on 1 January 2013. It clarifies that for non-South African citizens sojourning temporarily in South Africa, the issuing of a birth certificate under section 5(3) of the Births and Deaths Registration Act constitutes registration of the birth for purposes of section 4(3). The judgment also emphasizes the constitutional importance of citizenship as going to the core of a person's identity and sense of belonging, particularly in a context where xenophobia is a lived reality. It reinforces principles of administrative accountability by awarding punitive costs against the DHA for persisting with a meritless appeal after the Constitutional Court's judgment in Chisuse made the legal position clear. The case underscores that organs of state must act ethically and as role models of propriety in litigation.