Foreign nationals’ kids born in South Africa can be denied citizenship, but foreigners may work in government

In the Radio 702 interview, Motsoaledi said human rights and other nongovernmental organisations had demanded that children born to foreign parents be granted citizenship. 

He added: “I came out to the media to say we are not obliged to do something like that. There is no [international] law that forces us.”

The only exception, Motsoaledi said, was if by denying citizenship a person would become stateless. This means a person who is not recognised as a citizen in any country.

At least one South African parent required for citizenship

According to the 1995 South African Citizenship Act, citizenship can be granted by birth, descent and naturalisation. People are automatically given citizenship at birth if they are born in South Africa and at least one of their parents is a South African citizen or if they were adopted by a South African citizen.  

You can be granted citizenship by descent if you were born outside the country and at least one of your parents is a South African citizen. 

You can also apply for citizenship through naturalisation if you have been a permanent resident in South Africa for five years, have sufficient knowledge of at least one of the 11 official languages and are of “good character”. 

Children of foreign parents gain their nationality

The Scalabrini Centre in Cape Town offers specialised services to South Africans, migrants and refugees. In a July 2019 report it explains how nationality is determined for children with foreign parents. 

“Children born to two foreign parents in South Africa gain the nationality of those parents,” the report reads.  

“If the parents are of two different nationalities, the child might be able to apply to one or both of these nationalities, dependent on the nationality law of those countries.”

Children born in South Africa entitled to apply for citizenship at 18

Nandi Rayner is a junior research fellow and attorney at the University of Cape Town’s Refugee Rights Unit. She told Africa Check that children born in South Africa to foreign nationals can apply for citizenship when they turn 18 if they have lived in South Africa up to that date and their birth has been registered in accordance with the Births and Deaths Registration Act 51 of 1992.

“If a child was born in South Africa, to say a refugee or asylum seeker and had their birth registered, they would be entitled to apply for citizenship on reaching 18 if they can show that they have resided in South Africa for those 18 years,” Rayner said. This advice also appears in the Scalabrine Centre report.

“We are coming for those who work in chapter 9 institutions. We are coming for those who are holding key positions in gov,” begins the tweet with this claim, posted on 26 January. It then quote-tweets Radio 702’s tweet about Motsoaledi’s interview. It has nearly 200 retweets and 500 likes.  

It ends with: “The law says for anyone to serve at any gov spheres, they must be born in SA & both parents must be South African. @NalediChirwa we are coming.”

Naledi Chirwa is a member of parliament and a representative of the Economic Freedom Fighters political party. Some social media users have claimed she is not a South African citizen, allegations Chirwa has rebutted as “lies”.  

We are coming for those who work in chapter 9 institutions. We are coming for those who are holding key positions in gov. The law says for anyone to serve at any gov spheres, they must be born in SA & both parents must be South African. @NalediChirwa we are coming. https://t.co/4kyWsFB0vt

— Victoria Africa (@VictoriaAfrica9) January 26, 2022

The tweet’s mention of “any gov spheres” would include both government employees (the public or civil service) and elected officials. 

According to the Bill of Rights, chapter 2 of South Africa’s constitution, all citizens have the right to be elected for public office. Section 19 says: “Every adult citizen has the right … to stand for public office and, if elected, to hold office.” 

But chapter 4 section 4 of the constitution lists exceptions to citizens that can be elected members of parliament. These include people who are declared to be of unsound mind and those who have been convicted of an offence and sentenced to more than 12 months in prison without the possibility of a fine. 

But nowhere does it say that people who were not born in South Africa or who don’t have two South African parents are ineligible to serve as members of parliament. 

Citizenship the requirement – not where you (or your parents) were born  

Prof Pierre de Vos is a constitutional law expert based at the University of Cape Town. He told Africa Check that the tweet was “errant nonsense”. 

“To be eligible to stand for election for the national assembly, provincial legislatures and local councils one must be a South African citizen,” he said. 

“But there is no requirement that one should have been born in South Africa or that both your parents are South African citizens in order to serve in the legislative bodies at any of the three spheres of government.”

De Vos added that, in theory, a member of cabinet could be a foreign national as the constitution allows the president to appoint two members of cabinet who are not in the national assembly. “There is no explicit requirement that these two appointments need to be citizens.” 

The Public Service Regulations Act of 2001 does not say that only citizens may be hired. 

De Vos told us that the requirements for citizenship do not apply to people employed in government administration.