Stateless in country of birth: the seven-year pro bono legal journey to vindicate the right to statehood
Tuesday 14 June 2022
Nkosinathi Thema
Webber Wentzel, Johannesburg
nkosinathi.thema@webberwentzel.com
Names used with permission from clients.
The 1954 United Nations Convention relating to the status of stateless persons defines statelessness as ‘a person who is not considered as a national by any State under the operation of its law.’ One of the ways in which a person may become stateless is when their birth has not been documented in any country. This is exactly the predicament in which Rachel Gumbi and Mandla Mkandla found themselves. Their difficulty was not helped by the South African government’s lack of action and manifest bad faith in the handling of their case. While South Africa is not a signatory to the Convention, Rachel and Mandla are entitled to South African citizenship and protection under domestic law.
Rachel and Mandla are half-siblings, whose late mother was a Zimbabwean national living in South Africa and their respective late fathers were both South African citizens. Rachel and Mandla were born in South Africa and, other than their mother’s Zimbabwean nationality, they have no connection or attachment to any other country but South Africa. Rachel and Mandla’s births were not registered when they were born. Years later, they decided to apply for the late registration.
In 2015, the siblings approached Norton Rose Fulbright, to assist with the late registration of their births. For years, and despite numerous follow-ups, the Department of Home Affairs has failed to make a decision on the matter. During this time the partner responsible for their case moved to Webber Wentzel and took the case with her. During 2019 a judicial review application was brought against the Minister of Home Affairs in terms of the Promotion of Administrative Justice Act. The Minister opposed the review application but failed to file any papers or participate in the proceedings. Under these circumstances, during early 2020, the court ordered the Department to register Rachel and Mandla’s births and further ordered the Minister to make a decision about their citizenship within 60 days.
More engagements with the Department followed, which failed to issue the birth certificates and similarly the Minister failed to make a decision regarding citizenship. This led to the first contempt of court application which was due to be argued in August 2020, but four days before the hearing, the Department issued incorrect birth certificates to the siblings, recording their nationalities as Zimbabwean. During the contempt hearing which proceeded, the Minister was again ordered to make a decision regarding their citizenship within 60 days.
Basing his decision on these incorrect birth certificates, the Minister rejected their citizenship applications towards the end of 2020. Based on the existing evidence that Rachel’s father was a South African citizen and that Mandla was born in South Africa, evidence which qualified them for South African citizenship in terms of the Citizenship Act, the Minister’s decision to reject their standing for South African citizenship was taken on review. Again, the Minister and the Department did not participate in the review proceedings, and towards the end of 2021 the court ordered the Minister to issue certificates of citizenship to Rachel and Mandla.
Again, neither the Minister nor the Department complied with the court order, resulting in a second contempt of court application. During early 2022, days before the hearing, lawyers for the Minister informed Webber Wentzel that the Minister is willing to attempt and settle the matter. This, frustratingly, was no more than a disingenuous attempt to delay the hearing.
The second contempt of court application was heard on 14 April 2022, and the Minister was declared to be in contempt of the court order issued towards the end of 2021. The Minister was further directed to issue certificates of citizenship to Rachel and Mandla within ten days, failing which the Minister would have to personally appear in court to explain his failure to do so, and explain why he should not be imprisoned. The Department seems to have been moved into action, albeit slowly, by this order.
After seven years of pro bono legal effort, Rachel and Mandla may soon be able to exercise their rights, and simultaneously meet their obligations as South African citizens.