South African Citizenship 101.

2014-07-03 19:18

On Sunday 29 June 2014, the Sunday Times published an article entitled ” DA MP a liar and a fraud”, sparking widespread debate on social media regarding the validity of these claims. Well known South Africans stepped into the debate, including, notably, Kananelo “Kay” Sexwale. Many stood up for young DA MP, Phumzile Van Damme, whilst many attacked her, with some going as far as to say that she should be deported.

Who qualifies for citizenship in South Africa isn’t rocket science, and the qualifications are clearly laid out in the South African Citizenship Act of 1995. Yes, 1995! This is an post-Apartheid Act, signed into law by then President Nelson Mandela, passed by a 62.65% ANC majority government. So we aren’t dealing with archaic laws here, this is a democratic law. And the law is the law.

So, what defines South African citizenship? The Act puts South African citizenship into three categories:

Citizenship by birth;

Citizenship by descent and;

Citizenship by naturalisation.

So, given the allegations made against Ms Van Damme, and taking into consideration that DA Spokesperson Marius Redlinghuis put out a badly written, somewhat spun and contradictory statement, let us apply the law to this specific case, with the “facts” we have been provided by the Sunday Times.

The Sunday Times Investigation established the following;

* Phumzile Van Damme was born in Manzini, Swaziland, in 1983;

* Her mother, Lynette van Damme née Masuku, was born in Hlathikhulu village in Swaziland; and

* Phumzile’s biological father was Elroy Mayisela, a Swazi national who is deceased.

Marius Redelinghuys’s statement has far too many contradictions in it and, at best, confuses the hell out of anyone reading it. In a nutshell, he states her father, as well as her grandparents, are South African citizens, thereby contradicting the Sunday Times’ findings.

Apparently, a home affairs official told Lynnette Van Damme (Phumzile’s mother) to register her daughter based on the understanding that Pumzile was born in South Africa, but later become aware that this was a mistake which Lynette then didn’t correct, i.e. Lynnette lied in official documents and said Pumzile was born in Nelspruit and not Swaziland.

That said, let us apply the three deciding factors in determining citizenship, according to the Act.

* Citizenship by birth: Van Damme does not qualify in this regard. According to the Act:

2. (1) Any person-

(a) who immediately prior to the date of commencement of this Act, was a   South African citizen by birth; or

(b) who is born in the Republic on or after the date of commencement of this Act; or

(c) who is by virtue of section 3(1)(b) a South African citizen, and one of his or her parents or his or her mother if he or she was born out of wedlock, was at the time of such person’s birth

(I) in the service of the Government of the Republic; or

(ii) the representative or the employee of a person or an association of persons resident or established in the Republic; or

(iii) in the service of an international organisation of which the  Government of the Republic was then a member, shall, subject to the provisions of subsections (2) and (3), be a South African citizen by birth.

* Citizenship by naturalisation.

Van Damme does not qualify as both her parents are stated to be of Swazi descent, according to the Sunday Times’ allegations. According to the Act, persons who qualify are those:

3. (1)(i) one of whose parents was, at the time of his or her birth, a South African citizen and whose birth is registered in terms of the provisions of section 13 of the Births and Deaths Registration Act,1992 (Act No. 51 of 1992)

Note that there is absolutely no mention of grandparents. And from the Sunday Times/Times Live investigation, it is alleged that both her parents were born in Swaziland. No mention is made of Van Damme being a naturalised SA Citizen, either. Also no mention was made of the fact that Lynnette Van Damme’s parents were South African,  making her a South African citizen by descent.

* Citizenship by descent

Not enough evidence provided.

However, because Lynnette Van Damme and Elroy Mayisela were both born in Swaziland, (apparently Phumzile’s adopted father is from Belgium, nothing is mentioned about this in the Sunday Times’ article, or in Redlinghuys’s statement) and that DA Spokesperson Marius Redelinghuys’s statement says that Lynette Van Damme lied on Phumzile’s birth registration documents, and was too scared to rectify the lie, it is safe to assume that a Certificate of Naturalisation was not applied for, in terms of section 5. (1) of the Act.

With all the above taken into consideration, section 47 (1) of the Constitution stipulates that every citizen (citizenship being defined in terms of the Act) who is qualified to vote for the National Assembly is eligible to be a member of the assembly, which opens up more questions in this case.

A can of worms has been opened up and I am sure we are going to see a lot of finger pointing regarding this in the near future.

All these allegations could be resolved if the necessary documentation is made available to prove them. Whilst I understand that from a historical point this is a very complex issue, In the end our personal feelings of what constitutes borders, being South African and what is fair and unfair mean nothing in terms of what the law says. And ignorance of the law is not an excuse, in terms of the law.

Follow me on twitter @tim_meh87

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