South Africa

KEY ISSUES  

• There is no reliable data on the number of stateless people in South Africa, but it is considered to be a significant problem in the country. 
• South Africa does not have any mechanism in place to identify and provide protection status to stateless people. 
• The nationality law provides for access to nationality for children born in the country who would otherwise be stateless, but no implementation mechanism is provided in law, nor is there a specific provision for foundlings.  
• Birth registration procedures are discriminatory and pose a barrier to children in a number of contexts, putting children at risk of statelessness. 
• South Africa is not a party to either the 1954 or 1961 Statelessness Conventions. 

STATELESSNESS IN SOUTH AFRICA 

South Africa is understood to have a substantial stateless population and is marked by an asterisk (*) in UNHCR’s global statistics, denoting that there is information about stateless people in the country but no reliable data. The country has no dedicated mechanism for identifying statelessness and no official statistics for statelessness exist. It has been estimated that at least 10,000 people in South Africa are stateless, while as many as 15 million people are unregistered or undocumented (South Africans and non-nationals). A number of legal, administrative and practical barriers exist in the immigration and asylum, birth registration and citizenship frameworks that increase the risk of statelessness. 

Groups at risk of statelessness include undocumented South Africans, undocumented or irregular migrants, refugees and asylum seekers, orphaned and abandoned children and founding children, and unaccompanied and separated (migrant) children. Furthermore, in 2012 around hundreds of thousands of people had their identity blocked following the issuance of multiple or duplicate identity numbers due to administrative mistakes, corruption and fraud. In 2020, in response to a parliamentary question, the Minister of Home Affairs stated that the Department had, at that time, 813,343 identified cases of blocked identity. In these cases, the person’s legal status is blocked on the Home Affairs system, meaning that they cannot renew identity documents and are not afforded basic rights such as voting, travelling or access to their bank account. A plethora of documents is required to unblock identity, which many people do not possess, and this has left a considerable number of people at risk of statelessness. On 16 January 2024, the High Court of South Africa ruled that the practice of ‘ID blocking’ was unjust, unconstitutional, and invalid. Home Affairs has been ordered to determine whether unblocking the IDs of those affected will constitute a security risk, and to determine the status of those who filed the lawsuit within 90 days. What will happen with the remaining individuals affected is yet to be seen. 

Stateless people in South Africa are at risk of long-term arbitrary detention, largely as a consequence of the country not regulating the status of stateless individuals who do not qualify for refugee status. Gaps in the legal frameworks and how the law is applied result in many unaccompanied or separated migrant children remaining in a protracted legal limbo for years without a durable immigration status or identity documentation to prove nationality. There is an increasing number of these children, who are placed in child and youth care centres by an order of the Children’s Court.  

THE RIGHT TO A NATIONALITY IN SOUTH AFRICA 

The right to nationality is enshrined in the South African Constitution and the rules regulating access to nationality can be found in the South African Citizenship Act of 1995. Nationality in South Africa is acquired through a combination of jus sanguinis and jus soli. The rules have become more restrictive over time: in 2010, the Citizenship Act was amended to remove access to citizenship at birth for children born in South Africa to parents who are permanent residents and now a child born in South Africa is only to be able to acquire citizenship at majority, subject to certain conditions. 

The Citizenship Act provides for nationality to be granted to any child born on the territory without entitlement to another nationality. However, there are problems with the implementation of this statelessness safeguard, including because the law only grants citizenship to children if their birth has been registered and access to birth registration can be a significant challenge. South African law also does not make provision for the granting of nationality to foundlings. As a result, there are many children at risk of statelessness, including those whose parents are undocumented or without valid immigration status, foundlings, and unaccompanied foreign minors, as well as children born abroad to South African parents.  

South Africa prohibits dual citizenship and requires individuals to renounce their original nationality in order to apply for South African citizenship. This creates a risk of statelessness both during the application process, as well as after, in cases where applications have been rejected. The law also provides for automatic loss of South African nationality in certain circumstances, and for the loss of nationality of the children of adults who lose their nationality, without any safeguard against statelessness.

SOUTH AFRICA’S INTERNATIONAL COMMITMENTS 

South Africa is not a signatory to either the 1954 or 1961 Statelessness Conventions. South Africa has acceded to the CRC, ICCPR, CEDAW, ICERD, and CRPD, for which it maintains no reservations against the provisions relating to nationality. For more information on South Africa’s regional commitments, see the StatelessHub Africa page. 

• Click here to see what relevant Recommendations South Africa has received through the Universal Periodic Review. 
• Click here to see what relevant Recommendations South Africa has issued through the Universal Periodic Review. 
• Click here to see any voluntary pledges made by South Africa on nationality and statelessness. 

The content on this page was reviewed by Liesl Muller (Centre for Child Law) and Thandeka Chauke (Lawyers for Human Rights). 

[Last updated January 2024] 

Cover image by Lina Loos