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Citizenship through naturalization: Miriam Ali and others vs Minister of Home Affairs.

This matter revolved around the right to citizenship of a person born in SA, of foreign parents, lives all of their life in SA and reaches the age of majority (18 yrs) and wishes to take up citizenship. The matter was decided in the Appeal Court after first being heard in the Western Cape High Court.

The Appeal Court confirmed the Western Cape High court judgement as follows:

Neutral Citation: Minister of Home Affairs v Ali (1289/17) [2018] ZASCA

Summary: Citizenship Amendment Act 17 of 2010 (the Act) –

Interpretation of s 4(3) of the Act – section does not have a retrospective effect – respondents satisfy the requirements of citizenship by naturalisation – failure of the Minister to promulgate regulations for applications for citizenship in terms of s 23 of the Act – the order of the high court directing the Minister to accept applications on affidavits does not encroach upon the doctrine of separation of powers.

ORDER

  • On appeal from: The Western Cape Division of the High Court, Cape Town (Wille J sitting as court of first instance):
  • The appeal is dismissed with costs, such costs to include the costs occasioned by the employment of two counsel.
  • Paragraphs 1 and 2 of the order of the court a quo are confirmed.
  • Paragraph 3 of the order of the court a quo is amended to read: ‘The Minister shall –

3.1 Within one year of the date of this order make regulations in terms of s 23(a) of the South African Citizenship Act 88 of 1995 (the Act) in respect of applications for citizenship by naturalisation in terms of s 4(3) of the Act;

3.2 Pending the promulgation of the regulation in 3.1 above, accept applications in terms of s 4(3) South African Citizenship Act 88 of 1995, on affidavit.’

A question arises as to what the initial order stated:

  1. That the respondents are to forthwith accept applications on affidavit from each of the applicants (excluding the fourth applicant), for the granting of South African citizenship in terms of section 4(3)of the South African Citizenship Act 88 of 1995 and to decide on each such application within ten days of receipt of such application/s.
  2. That section 4(3)of the South African Citizenship Act 88 of 1995 applies to persons who meet the requirements of that section, irrespective of whether they were born before or after 1 January 2013.
  3. That the respondents shall:

3.1 Within one year of the date of this order, enact the necessary form/s to allow for applications in terms of section 4(3) of the South African Citizenship Act 88 of 1995; and

3.2 Pending the enactment of the form/s referred to in paragraph 3.1 above, accept applications in terms of section 4(3) South African Citizenship Act 88 of 1995, on affidavit.

So in summary, the effective order is:

Western Cape High Court:

  1. That the respondents are to forthwith accept applications on affidavit from each of the applicants (excluding the fourth applicant), for the granting of South African citizenship in terms of section 4(3)of the South African Citizenship Act 88 of 1995 and to decide on each such application within ten days of receipt of such application/s.
  2. That section 4(3)of the South African Citizenship Act 88 of 1995 applies to persons who meet the requirements of that section, irrespective of whether they were born before or after 1 January 2013.

Supreme Court of Appeal:

‘The Minister shall – 3.1 Within one year of the date of this order make regulations in terms of s 23(a) of the South African Citizenship Act 88 of 1995 (the Act) in respect of applications for citizenship by naturalisation in terms of s 4(3) of the Act; 3.2 Pending the promulgation of the regulation in 3.1 above, accept applications in terms of s 4(3) South African Citizenship Act 88 of 1995, on affidavit.’ 

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