Issue: How does one acquire South African citizenship? The Chidimma situationship
Here’s a (sort of) question from Tumiso:
“I have been waiting for you to share your two cents on the Chidimma situation. I thought you would have given us the low down on immigration law by now :)”
From The Legal Desk:
Thank you for your question Tumiso. I have actually spoken to a few people about this matter but have not had a chance to share my thoughts via The Legal Desk. For those who are not familiar with the details of this issue, here is a brief breakdown:
Ms Chidimma Vanessa Adetshina was a contestant in the Miss South Africa 2024 pageant. She was on her way to becoming a top 10 finalist when social media took notice. Not only is “Chidimma Adetshina” clearly not a South African name, but it is also a Nigerian name, which upset several people. The rallying cry on social media was, “We cannot have a Nigerian Miss South Africa,” and a petition to remove her from the pageant gathered thousands of signatures at a startling rate.
At the time of writing, it is unclear what Ms Adetshina’s immigration/citizenship situation is. Some claim she has a Nigerian father and a Mozambican mother, while others say her mother is South African. There are also conflicting reports about whether she was born and raised abroad, born abroad and raised in South Africa, or born and raised in South Africa. Due to the lack of relevant information, I am not in a position to offer any definitive observations on the matter. What I can do for now, is share what the legislation states regarding citizenship. So, let’s take a look at the legals…
Citizenship in South Africa is defined by the South African Citizenship Act 88 of 1995 (“the Act”).1 The Act outlines the various ways through which citizenship can be acquired in South Africa. We will take a look at the three primary methods.
Citizenship by Birth
Section 2 of the Citizenship Act identifies the following people as citizens by birth:
(1) Any person:
(a) who, immediately prior to the commencement of the South African Citizenship Amendment Act, 2010, was a South African citizen by birth; or
(b) who is born in or outside the Republic, with at least one parent being a South African citizen at the time of their birth, shall be a South African citizen by birth.
(2) Any person born in the Republic who is not a South African citizen by virtue of subsection (1) shall be a South African citizen by birth if:
(a) they do not have the citizenship or nationality of any other country, or have no right to such citizenship or nationality; and
(b) their birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act 51 of 1992).
(3) Any person born in the Republic to parents who have been admitted to the Republic for permanent residence and who is not a South African citizen qualifies to be a South African citizen by birth if:
(a) they have lived in the Republic from birth until reaching adulthood; and
(b) their birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act 51 of 1992).
Put simply, Section 2 of the Act states that one can acquire South African citizenship by birth if they were:
1. born to a South African citizen before 2010 or to at least one parent who is a citizen.
2. born in South Africa without any other citizenship or right to it, and with a registered birth. This is to prevent statelessness. I remember an interesting case once about a little girl adopted by South Africa after being born in the country to Cuban parents. Interesting case, but I digress.2
3. born in South Africa to parents admitted as permanent residents and then they lived in South Africa from birth to adulthood, with a registered birth.
It is important to note that during apartheid, not all nationals were considered citizens of South Africa. For instance, many South African residents in Transkei, Bophuthatswana, Venda, and Ciskei (the so-called “TBVC States”) were not regarded as South African nationals. The Act aims to correct these injustices by including all persons born in South Africa before 6 October 1995.
Citizenship by Descent
Citizenship by descent generally requires a blood relation, but under South African law, it is also extended to adopted persons born outside South Africa. Section 3 of the Act states:
Any person who is adopted in terms of the provisions of the Children’s Act by a South African citizen and whose birth is registered in accordance with the provisions of the Births and Deaths Registration Act 51 of 1992), shall be a South African citizen by descent.
Citizenship by descent includes persons born outside South Africa where one parent (either mother or father) was a South African citizen at the time of the adoption and where the birth is registered. Note that citizenship by descent is not an automatic process; it requires an application approved at the discretion of the Minister of the Department of Home Affairs.
Citizenship by Naturalisation
Naturalisation is the legal process by which a non-citizen acquires citizenship of a country. According to sections 4 and 5 of the Act, an adult applicant with a valid permanent residence permit or exemption certificate may apply for naturalisation. Applicants must apply to the Minister to obtain naturalisation as a South African citizen, meeting several criteria. These requirements include that they must not be minors, have been granted permanent residence in South Africa, have resided continuously in the country for at least five years prior to application, possess good character, intend to remain in South Africa or serve its government, demonstrate proficiency in one of the official languages, understand the responsibilities and privileges of South African citizenship, and be citizens of countries allowing dual citizenship. If not, they must renounce their original citizenship with documented proof.
What if a child is born in South Africa to foreign parents?
Section 4(3) of the Act provides:
A child born in the Republic of parents who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if—
(a) he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and
(b) his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act
This means that a child born in South Africa to non-citizen or non-permanent resident parents (such as Chidimma?) can apply for citizenship upon reaching adulthood if they have lived continuously in South Africa since birth, and their birth was registered under the Births and Deaths Registration Act.3
According to the Department of Home Affairs (DHA), section 4(3) cannot be applied retrospectively. Therefore, children born to foreign parents before January 2013 in South Africa are not eligible for citizenship. However, in Mariam Ali v The Department of Home Affairs,4 it was held that section 4(3) applies to persons who meet the requirements of that section, regardless of whether they were born before or after 1 January 2013. The Supreme Court of Appeal confirmed this ruling after the DHA appealed.5
As mentioned earlier, it is difficult to determine the specifics of the Chidimma case due to the scant and constantly changing information available on social media. You are welcome to use the information I have provided and apply it based on the facts you have. Of course, it is worth keeping in mind that the Minister of Home Affairs has recently announced (albeit somewhat cryptically) that an investigation has revealed prima facie evidence of potential fraud committed by Chidimma’s mother. Given this development, it would be prudent to await the outcome of this investigation before engaging in further speculation and legal discussions.
Written by Theo Tembo
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- Does a mistress have an rights to her deceased lover’s estate?
- As amended by the South African Citizenship Amendment Act 17 of 2010, which came into effect on 1 January 2013. ↩︎
- https://citizenshiprightsafrica.org/sa-adopts-stateless-baby/ ↩︎
- Act 51 of 1992. ↩︎
- (1556/2016) 7 September 2017. ↩︎
- Minister of Home Affairs v Ali (1289/17) [2018] ZASCA 169 (30 November 2018). ↩︎
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