Statelessness and COVID-19 in South Africa
| Author | Vhonani Sarah-Jane Neluvhalani-Caquece |
| DOI | 10.25159/2522-6800/10244 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Pages | 1-28 |
Article
Southern African Public Law
https://doi.org/10.25159/2522-6800/10244
https://unisapressjournals.co.za/index.php/SAPL
ISSN 2522-6800 (Online)
#10244 | 28 pages
© The Author(s) 2022
Published by Unisa Press. This is an Open Access article distributed under the terms of the
Creative Commons Attribution-ShareAlike 4.0 International License
(https://creativecommons.org/licenses/by-sa/4.0/)
Statelessness and COVID-19 in South Africa
Vhonani Sarah-Jane Neluvhalani-Caquece
https://orcid.org/0000-0002-5007-2032
University of Limpopo
vhonani.neluvhalani@ul.ac.za
Abstract
The COVID-19 pandemic has emphasised the plight of the stateless in South
Africa. Statelessness is a pandemic on its own and has been regarded as ‘a
forgotten human rights crisis.’ The consequence of statelessness is the inability
to access internationally and democratically recognised human rights standards
and protections due to a stateless person not having a nationality. The
declaration of the State of Disaster in South Africa in March 2020 and the
ensuing stages of lockdowns, testing and access to vaccinations have been put
into place to curb the infection rate of COVID-19. Such interventions are
available to nationals, non-nationals, refugees and asylum seekers, but those
who are stateless encounter challenges in accessing socio-economic rights
granted by the government. The inability of the stateless to access basic services
such as access to health facilities, food, shelter, sanitation, vaccinations and
protection have been exacerbated by the COVID-19 pandemic. Despite
international and regional laws guaranteeing the protection of those who are
stateless and the South African constitutional dispensation, socio-economic
hardships affect the stateless who do not have a nationality. Against this
background, this article outlines what statelessness is, it examines good
practices in countries such as the United Kingdom, Spain, Portugal, Kenya and
Uganda in relation to statelessness and access to COVID-19 vaccinations. It
suggests that in addition to good practices, ubuntu must be the basic value that
underpins the transformation of nationality laws. Even though some advances
have been made to provide a separate registration platform for the stateless to
access vaccinations, much work needs to be done still before a permanent
solution is found.
Keywords: ubuntu; statelessness; good practices; COVID-19; access; vaccinations;
socio economic rights; socio economic services
Neluvhalani-Caquece
2
Introduction
The COVID-19 pandemic has brought to light the plight of the stateless in South Africa.
Statelessness is regarded as a ‘forgotten human rights crisis’
1
because a stateless person
does not have a nationality and therefore no access to democratically recognised human
rights standards and protections.
2
The declaration of the State of Disaster,
3
in South
Africa on 15 March 2020 and the ensuing stages of lockdowns,
4
testing and access to
vaccinations,
5
were a bid to curb the infection rate of COVID-19. Although such
interventions are available to nationals, non-nationals, refugees and asylum seekers,
6
stateless individuals encounter challenges in accessing socio-economic benefits.
7
The
inability of the stateless to access such basic rights such as access to health facilities,
food, shelter, sanitation and vaccinations have been exacerbated by the COVID-19
pandemic.
8
Despite international and regional laws guaranteeing the protection of those
who are stateless
9
and the South African constitutional dispensation,
10
socio-economic
hardships affect stateless individuals who have no nationality.
11
Out of the 60.14 million people in South Africa, only ten million doses of COVID
vaccine were administered by 29 September 2021.
12
According to the United Nations
High Commissioner for Refugees (UNHCR), people of concern in South Africa amount
to 36 664, which include stateless people.
13
The COVID-19 pandemic has brought to
1
Lindsey N Kingston, ‘A Forgotten Human Rights Crisis and Issue (Non) Emergence’ (2013) 14
Human Rights Review 2.
2
UNHCR Ending Statelessness accessed 31
March 2022.
3
Disaster Management Act of 2002.
4
South Africa alert level 5 lockdown started on 26–30 April 2020. A full list is available
5
SA Coronavirus online platform at accessed 31 February 2022.
6
ibid.
7
Bilkis A Siddika, Impact of Statelessness: Are we ready to face? (2019) 7(12) Open Journal of Social
Sciences accessed 22 March
2022.
8
UN ‘COVID-19 and Human Rights: We are in This Together’ Report (April 2020)
s_and_COVID_april_2020.pdf> accessed 31 March 2022.
9
UN Convention Relating to the Status of Statelessness (1954 ) and the UN Convention on the
Reduction of Statelessness (1961) (The Statelessness Conventions).
10
The Constitution of the Republic of South Africa, 1996.
11
Melanie Khann a and Betsy Lippman, ‘New Evidence about the Socioeconomic Impact of
Statelessness emerges from a Study of the Shona Community in Kenya’ (January 2021)
kenya/> accessed 30 March 2022.
12
Stats SA accessed 19 October
2021.
13
UNHCR ‘Southern Africa COVID Response 1-30 June 2021’
uar2AhWSYsAKHY19CGYQFnoECBIQAQ&url=https%3A%2F%2Freporting.unhcr.org%2Fsite
Neluvhalani-Caquece
3
light the plight of people without a nationality.
14
COVID-19 has had an unequal impact
on people of concern such as the stateless.
15
Of interest is the question whether stateless
people have access to vaccinations in South Africa.
16
This article analyses access to socio-economic services during the COVID-19 pandemic
and, in particular, access to vaccination for stateless persons in South Africa. In doing
so, it provides an overview of statelessness in the ambit of international and regional
legal frameworks and examines how countries such as the United Kingdom, Spain,
Portugal, Kenya and Uganda have dealt with access to vaccination. This is followed by
a discussion on statelessness and access to COVID-19 vaccines in South Africa. It
concludes by observing this scenario through the lens of ubuntu, an African concept,
which recognises a human being as part of a community, by virtue of being human. The
philosophy of ubuntu could be utilised as a socio-legal tool in order to argue for the case
of the stateless in South Africa. To be effective, vaccination programmes must be
inclusive as the COVID-19 pandemic affects everybody, regardless of whether they
have a nationality or not. Although this article focuses on South Africa, the challenges
that arose during the COVID-19 pandemic and the status of being stateless may be
relevant to other states faced with similar challenges.
Statelessness and Access to COVID-19 Vaccinations: An International
and Regional Overview
To date, disruptions in birth registration services due to COVID-19 restrictions have
resulted in new risks of statelessness.
17
This creates a real risk, in that stateless people
may be excluded from national immunisation plans, regardless of whether their age,
health status or role in society would otherwise place them in a priority group.
18
For the approximately fifteen million people worldwide who are stateless and already
endure discrimination and denial of basic rights and services, the harm caused by
statelessness has reached unprecedented levels.
19
Statelessness is a worldwide problem,
s%2Fdefault%2Ffiles%2FSouthern%2520Africa%2520COVID19%2520update%2520April%2520
2021.pdf&usg=AOvVaw0nfk1o0WjXlxTKqF2-hhrK> accessed 3 March 2022.
14
ibid.
15
and-good-practices-vaccine accessed 25 February 2022; UNCHR Impact of COVID-19 on stateless
populations June 2021 https://www.refworld.org/docid/60b8d6d84.html> accessed 30 March 2022.
16
UNCHR ‘Impact of COVID-19 on Stateless Populations’ (June 2021)
barred from accessing testing and treatment facilities and further excluded from social services, due
to a lack of legal status.
17
ibid
18
ibid.
19
Laura van Waas and Ottoline Spearman, ‘The Life-or Death Cost of Being Stateless in a Global
Pandemic’ (2020) 32(3) International Journal of Refugee Law 498.
Neluvhalani-Caquece
4
as reported by the United Nations High Commissioner for Refugees (UNHCR).
20
Due
to their legal status of not having a nationality, stateless persons live under the radar and
fear perpetual detention without deportation.
21
International law regulates statelessness through the Convention Relating to the Status
of Stateless Persons of 1954 and the Convention on the Reduction of Statelessness of
1961 (The Statelessness Conventions). The Convention Relating to Statelessness is the
cornerstone of the international legal framework for the protection of stateless people.
22
It illustrates the international concern over the human and political problems caused by
statelessness and enshrines the protection framework.
23
It defines a stateless person as
‘someone who is not considered a national under the laws of any state.’
24
This definition
can be analysed by breaking it down into two constituent elements which are (a) not
considered a national under the operation of its law and (b) by any state.
25
An enquiry
is limited to the states with which a person may have a link, because of birth in the
territory, descent, marriage, adoption or habitual residence.
26
The legal effect is that a
stateless person is not recognised as a national by any state and therefore is unable to
receive the legal protection and rights afforded to recognised nationals. A nationality is
a legal bond between a person and a state as it provides a person with a sense of identity
and more importantly allows them to exercise a wide variety of rights,
27
therefore the
lack of a nationality is a serious disadvantage.
28
Some people are born stateless, while
others become stateless.
29
Statelessness is caused by a series of sovereign, political,
legal, technical or administrative directives that may result in a lack of nationality.
30
20
Statelessness in Numbers 2020 on Global Statelessness’
21
Caia Vlieks, ‘Contexts of statelessness: A study of “Statelessness in Situ” and “S tatelessness in the
Migratory Context” in Europe’ (LLM thesis, Tilburg Law School 2017) 4; Bill Frelick and Maureen
Lynch, ‘Statelessness: A Forgotten Human Rights Crisis’ (2005) Forced Migration Review 65.
22
Laura Van Waas, ‘Fighting Statelessness and Discriminatory Laws in Europe’ (2012) European
Journal of Migration and Law 243.
23
Katia Bianchini, ‘A Comparative Analysis of Statelessness Determination Procedures in 10 EU
States’ (2017) International Journal of Refugees 4.
24
Convention Relating to the Status of Statelessness 1954 Art 1(1).
25
Laura van Waas, ‘Fighting Statelessness and Discriminatory Laws in Europe’ (2012) European
Journal of Migration and Law 244.
26
UNHCR, Handbook on the Protection of Stateless Persons under the 1954 Convention relating to
the Status of Stateless Persons (2014) 11.
27
Carol A Batchelor, Statelessness and the Problem of Resolving Nationality Status’ (1998)
International Journal of Refugee Law 185.
28
Vhonani S Neluvhalani, ‘An Analysis and Re-assessment of the Immigration Legislative and
Administrative frameworks in Combating Statelessness: A Decolonised View’ (LLD thesis, NWU
University Potchefstroom 2021) 74.
29
UNHCR ‘Understanding Statelessness’ accessed 25
February 2022.
30
Kingston (n 1) 74.
Neluvhalani-Caquece
5
A lack of international consensus over who exactly is to be considered ‘stateless’
remains a major stumbling block.
31
It is accepted that statelessness can take different
forms, with Weis referring to one form as ‘original’ or ‘abs olute’ statelessness, which
is the status of persons who do not acquire a nationality at birth.
32
This is de jure
statelessness as per the definition of Article 1(1) of the 1954 Convention. De jure
statelessness manifests itself in persons who have no legal claim to nationality in any of
the states to which that person is connected by either birth or descent.
33
The second form
of statelessness, is described as ‘relative’ statelessness, where the person acquired a
nationality at birth, but has lost it without acquiring another, also known as de facto
statelessness. This is the situation where a person ‘lacks the ability to prove his/her
nationality’ or where they are unable to establish with certainty a li nk with a specific
country.
34
This is manifested in a legal claim to nationality under the law but without
proof .
35
In the case where no country would consider a person a national, the status
changes from de-facto to de jure statelessness.
36
De facto statelessness is not defined in
the 1954 Convention, however, it is considered that being de facto stateless refers to a
person outside his/her country of nationality and who is unable or, due to valid reasons,
is unwilling to avail themselves of the protection of that country.
37
Finally, some people are stateless in situ, which refers to stateless persons who are
situated ‘in their home country’ that is, within a country they consider to be their home
and with which they have strong or stable ties through birth or long-term residence
38
—
a country they consider their own
39
with an absence of links to other countries.
40
Statelessness in situ is a consequence of denial of nationality even when the person is
born in that country and has resided there his/her entire life
41
and has never crossed
borders to another.
42
The 1954 Convention remains the primary legislation that regulates
non-refugee stateless persons to ensure that they enjoy human rights without
31
Vlieks (n 21) 6.
32
Paul Weis, ‘The United Nations Convention on the Reduction of Statelessness 1961’ (1962)
International Comparative Law Quarterly 1074.
33
John Dugard and others, Dugard’s International Law: A South Africa Perspective’ (Juta 2018) 536.
34
Jason Tucker, ‘Questioning de facto Statelessness: by looking de facto Statelessness’ (2014) Tilburg
Law Review 276.
35
Dugard and others (n 33) 536; Nibigira v Minister of Home Affairs (41256/2011) [2011] ZAGPJHC
178 (28 November 2011 ) para 16; B NO v Minister of Home Affairs NO (2665/2017) [2018]
ZAECPEHC 24 (29 May 2018) para 8.
36
Tucker (n 34) 278; Hugh Massey, UNHCR and de facto statelessness Legal Protection (2010) 5.
37
UNHCR (n 26) 44.
38
Gyulai 2012 ‘Statelessness in the EU Framework fo r International Protection’ (2012) European
Journal of Migration and Law 279.
39
Vlieks (n 21) 37.
40
UNCHR (n 37) Part III para 164.
41
Vlieks (n 21) 38.
42
ibid. Children make up the greater part of persons who are at risk of statelessness, even though th ey
are, in principle, protected under international law and the principle of best interests of the child since
‘the right to a nationality from birth’ is a right that is entrenched in the Constitution and Art 7 of the
Convention for the Rights of the Child (1989).
Neluvhalani-Caquece
6
discrimination. It provides for stateless persons to have a recognised legal status, access
to travel documents, identity documents and other basic forms of documentation. In
addition, it provides a common framework with minimum standards of treatment such
as freedom of religion and education of their children,
43
the right to employment,
44
housing,
45
etcetera.
The absence of a legal status prevents a stateless person from accessing socio-economic
services (amongst others) because of a fear that their legal status might put them at risk
of being detained without possible deportation.
46
This is a predicament which calls for
vaccination programmes to be inclusive of all people resident on the territory regardless
of legal status.
47
The 1961 Convention also focuses on avoiding statelessness and requires countries to
provide safeguards in their nationality laws to prevent statelessness, both at birth or by
operation of law, by ensuring that the contracting state grants nationality to a person
born on its territory, who would otherwise be stateless.
48
By ratifying the 1961
Convention, countries agree to the reduction of statelessness over time. The regulation
of immigration-related issues, such as human security, access to nationality and the
consequences of statelessness is gaining importance,
49
as it leads to hardship and affects
dignity and identity.
50
Statelessness may affect the integration of people into society,
contribute to discrimination and produce community tensions.
51
Stateless people do not
fit within the conventional international legal order where nationality, which constitutes
the common link between the individual and international law, determines the country
responsible for their protection.
52
Owing to their statelessness, stateless persons are
incapable of exercising their most fundamental human rights and because of this,
statelessness has been described as a legal vacuum.
53
Statelessness is a widespread problem, which is increasing worldwide and has various
overwhelming legal, social, economic and psychological consequences for those
43
Statelessness Convention 1954 Arts 4 and 22.
44
ibid Arts 17 and 18.
45
ibid Art 21.
46
Institute on Statelessness and Inclusion (ISI), The World’s Stateless Children (Wolf Legal Publishers
Netherlands 2017) 37.
47
UNCHR, ‘Impact of COVID-19 on Stateless Populations’ (June 2021)
48
UNHCR, Introductory Note (1961 Convention).
49
UNHCR The State of the World’s Refugees, A Humanitarian Agenda (1997) 2.
50
Procedures and Practice in Selected EU States’ (PhD thesis, University of York 2015) 9.
51
Vlieks (n 21) 4.
52
Bianchini (n 50) 9.
53
Amuur v France 19776/92 para 51; The applicants asserted that their detention had no legal b asis,
whether under the French legislation in force at the time or under international law. They had found
themselves in a legal vacuum in which they h ad neither access to a lawyer nor information about
exactly where they stood at the time.
Neluvhalani-Caquece
7
affected by it.
54
Recognition is central to the right to nationality, and when recognition
is withdrawn, human beings are left stateless and thus rightless.
55
Arendt aptly states
that the calamity of those without rights is not that they are deprived of life, liberty, and
the pursuit of happiness, or of equality before the law and freedom of opinion, but that
they no longer belong to any community whatsoever.
56
This is the situation that many
stateless persons find themselves in. It is a man-made problem and the onus is on the
state to resolve it by granting stateless persons a nationality.
57
The Universal Declaration
of Human Rights of 1948, makes provision for the ability to realise and have access to
the right to nationality
58
and more needs to be done to assist the stateless.
The Global Action Plan as soft law, offers practical guidelines on how states may ensure
that the national law of a state is developed to incorporate provisions that will assist in
identifying those who are stateless and to resolve major statelessness situations.
59
It is
envisaged that states may assist in preventing new cases of childhood statelessness from
occurring and for states to ensure that their nationality laws grant children, who would
otherwise become stateless, a nationality at birth.
60
This action ties in neatly with the
principle of ubuntu as a socio-legal tool.
All states are required to have nationality laws that allow both men and women to
become a nationals and for receive equal treatment in relation to the conferral of
nationality onto their children with regard to the acquisition, change and retention of
nationality.
61
It is further required that states should not prevent access to nationality
through discriminatory processes.
62
States must identify stateless migrants through
Statelessness Determination Procedures which would lead to a legal status that allows
and guarantees the right to basic human rights and assistance with the naturalisation
process.
63
The seamless integration of Statelessness Determination Procedure into the
South African existing immigration processes will allow for the early determination of
statelessness, with measures in place to provide the necessary protection under the
Statelessness Conventions.
64
States must ensure that there are no reported cases of
statelessness due to a lack of registration at birth.
65
This has been a growing risk with
54
William Conklin, Statelessness: The Enigma of an International Community Statelessness Foreword
(Oxford 2014).
55
Hannah Arendt, The Origins of Totalitarianism (Harcourt Books 1994) 300.
56
ibid 295.
57
Fatima Khan, ‘Exploring Childhood Statelessness in South Africa’ (2020) PER/PELJ 26.
58
Universal Declaration of Human Rights Art 15 (1948).
59
Global Action Plan: Resolve Existing Major Situations of Statelessness Action 1.
60
ibid Ensure No child is born Stateless Action 2.
61
ibid Remove gender discrimination from nationality laws Action 3.
62
ibid Prevent denial, loss or deprivation of nationality on discriminatory grounds Action 4.
63
ibid Action 6: Grant protection status to stateless migrants and facilitate their naturalisation.
64
Neluvhalani (n 28).
65
Global Action Plan (n 59) Action 7: Ensure birth registration for the prevention of statelessness.
Neluvhalani-Caquece
8
the lockdowns imposed, as some of the services regarding birth registrations were not
deemed essential.
The International Covenant on Economic, Social and Cultural Rights (ICESCR),
66
provides that member states must recognise the right of all their peoples to the
enjoyment of the highest attainable standard of physical and mental health,
67
and the
steps to be taken by member states to achieve the full realisation of this right shall
include those necessary for the prevention, treatment and control of epidemic, endemic,
occupational and other diseases.
68
Furthermore, the Universal Declaration of Human
Rights establishes the right for all to a standard of living adequate for the health and
well-being of individuals and their families. This would include food, clothing, housing,
medical care, social services and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond a person’s control.
69
This humanitarian approach echoes the very essence of
ubuntu.
In particular, the spread of COVID-19 has hastened the need for governments world-
wide to have measures in place to aid and protect all people in their territories including
the stateless. It is one of the reasons why the UNHCR published an Impact Study in
May 2020, which provides up-to-date policy recommendations and good practices for
adoption by any government with a stateless population facing the danger of COVID-
19.
70
The UNHCR Impact Study, provides a basis for improving the legal conditions of
stateless people and those at risk of becoming stateless. Some guidelines are pivotal in
giving direction to states that have a statelessness population. They prescribe that states
must be cognisant of the conditions and environments where the stateless live as they
are part of the most vulnerable people to contract the COVID-19 virus and may be
fearful to access any public health facilities due to their lack of a legal status.
71
States
are urged to take a human rights-oriented response that puts people at the centre.
72
The South African Development Community (of which South Africa is a member) at
its fortieth Parliamentary Forum, tabled statelessness as an issue of concern within the
66
67
ibid Art 12 (1) of.
68
ibid Art 12 (2)(c).
69
The Universal Declaration of Human Rights 1945 Art 25(i).
70
The Impact of COVID-19 on Stateless Populations: Policy Recommendations and Good Practices,
May 2020 accessed 29 September 2021.
71
UNHCR ‘The Impact of COVID-19 on Stateless Po pulations: Policy Recommendations and Good
Practices’ (June 2021) accessed 30 March 2022
1.
72
The human rights-centered approach is analogous to the socio-legal principle of ubuntu that is people-
centered to ensure that a communal approach is taken in addressing issues.
Neluvhalani-Caquece
9
region and it passed a resolution on the Prevention of Statelessness and the Protection
of Stateless Persons.
73
Vaccination Strategies in Selected Jurisdictions
As of 26 May 2021 some 166 states have started vaccination campaigns.
74
At the time
of this report, the UNHCR confirmed that it was not clear as to whether states would
make provision for stateless persons in their territories in order for them to access
vaccinations, as the issue of not having a nationality continued to pose a challenge.
75
In
the bid to curb COVID-19, public health experts understood that once vaccinations
became available, equittable and universal access to vaccination would be key.
76
This
led to the launch of COVAX facility,
77
which is a global collaboration aimed at
accelerating the development and production of COVID-19 vaccines.
78
According to
the UNHCR:
The initial aim is for vaccines to be made available as quickly as possible to at least 20%
of the populations of all 190 participating countries or territories and so that all States
can target those at highest risk of contracting the virus, including health care workers,
and those most vulnerable to suffering severe consequences if they do. This includes 92
low- and middle-income countries eligible for support through the COVAX Adv anced
Market Commitment (AMC), a financing instrument designed to support equitable
access to vaccines regardless of income level. As of 31 May, COVAX had shipped over
77 million COVID-19 vaccine doses to 127 participants.
79
The COVAX facility further made provision for a humanitarian buffer to cater for those
high risk and vulnerable people including the stateless.
80
In addition, the World Health
Organisation (WHO) issued a framework aimed at guiding states on how to allocate
vaccines. The UNHCR published statistics on the national vaccination plans and
programmes of 157 countries. A majority (due to language barriers) remain unclear on
whether stateless persons will be able to access vaccines. In forty-seven countries, it is
reflected that stateless persons would be included, based on assurances made to the
73
SADC countries urged to domesticate laws on statelessness
ISS (n 46) 42.
74
UNCHR (n 71).
75
ibid 2.
76
ibid 3.
77
COVAX Facility is a global network of states to which S outh Africa is a member
78
UNHCR (n 71) 3.
79
ibid 4.
80
A separate ‘Humanitarian Buffer’ of up to five per cent of the total number of doses available through
COVAX was created to facilitate access to vaccines for high-risk and vu lnerable populations,
including stateless people, in humanitarian setting s where there have been unavoidable gaps in
national vaccine plans despite advocacy efforts
accessed 22 March 2022.
Neluvhalani-Caquece
10
UNHCR. However, there is limited information on the actual practice to-date.
81
Some
countries are specific in that stateless persons are excluded from their national
vaccination programmes because of practical reasons, a lack of certain identification
documents and a lack of legal status.
82
It is noted further that owing to a general lack of
data, it is most likely that stateless persons get overlooked in national campaigns. Many
stateless persons also fear coming out due to a lack of legal status as it poses the risk of
detention.
83
The UNHCR has identified good practices in countries that have created mechanisms
in their vaccination programmes to provide access to vaccination for all people in their
territories without making a distinction between nationals and other categories such as
refugees, asylum seekers and stateless persons. Countries such as the United Kingdom,
Spain, Portugal, Kenya and Uganda have the following practices (this article only
focuses on these out of the 157 states in the UNHCR Access to Vaccinations Report).
The United Kingdom is a good example of providing access to vaccination for all people
in its territory. It has introduced a firewall between vaccination and immigration
services.
84
This allows undocumented migrants and those who are stateless to receive
vaccinations without their information being passed on to the immigration police.
85
Spain makes provision for all persons residing in its territory, including migrants with
irregular legal status. Migrants in detention are prioritised as they are in close proximity
to each other.
86
Portugal has included stateless persons in its national vaccination plans
on an equal footing with nationals based on the priority categories established on health
risk. Uganda has rolled out its national vaccination plan prioritising those at high risk.
An identity document is required for vaccination, but an introduction letter from the
local authority is accepted as proof of identity for the purposes of vaccination. Kenya
also accepts introduction letters from a local authority for purposes of vaccination.
87
Statelessness and Access to COVID-19 Vaccines in South Africa
The number of stateless persons in South Africa is estimated to be around 10 000.
88
South Africa pledged
89
to ratify both Statelessness Conventions, but this has not yet
81
UNHCR (n 71) 3.
82
ibid 4.
83
ibid 5.
84
ibid 5.
85
ibid 5.
86
ibid 8.
87
ibid 9.
88
Scalabrini Centre of Cape Town: ‘Stateless in South Africa’
89
UNHCR ‘Report: Follow up of the Pledges made during the Intergovernmental Event at the
Ministerial Event at the Ministerial Level of Member States of the United Nations’ (December 2011,
dated 1 August 2013) LHR 2017
Neluvhalani-Caquece
11
been done, as South Africa contends that its citizenship provisions contain sufficient
safeguards to prevent the risk of statelessness. Studies reveal that the stateless consist
of different groups of people nationality problems, albeit for different reasons.
90
An
example includes migrants, asylum seekers and refugees from other countries who do
not enjoy the nationality of their country of origin and who face the risk of statelessness
as a result of a protracted problem of lack of documentation of their link to any
country.
91
Children who are abandoned and/or orphaned also often encounter problems
of nationality and can be at risk of statelessness.
92
There is a significant gap in South Africa’s legislation regarding statelessness.
93
Therefore, stateless people run the risk of being excluded from national immunisation
plans, despite the fact that the Constitution of the Republic of South Africa (the
Constitution) contains a provision that South Africa belongs to all who live in it.
94
During lockdown, the Department of Home Affairs suspended birth registrations, which
may have created a backlog and a risk for unregistered children born during this time.
95
The UNHCR recommends that birth registration services should be considered an
essential service.
96
The inability of stateless people to access socio-economic services and receive human
rights protection goes against the constitutional right to a nationality, as guaranteed in
the Constitution,
97
and the Universal Declaration of Human Rights,
98
amongst others.
99
The case of Chisuse,
100
confirmed that nationality consists of more than legal status and
is at the core of a person’s identity and their sense of belonging in the community. This
case illustrated that the court plays a major role in the absence of legislation that makes
specific provision for the rights of children. It displays an interpretive approach that is
http://www.ngopulse.org/press-release/press-statement-states-ask-south-africa-give-rights-
stateless> accessed 22 March 2022.
90
The World’s Stateless-Children 36.
91
Jessica P George and Rosalind Elphick, Statelessness and Nationality in South Africa (UNHCR
2013) 103.
92
Lawyers for Human Rights and Institute on Statelessness and Inclusion, ‘Childhood Statelessness in
South Africa’ (2016)
Africa.pdf>.
93
Dugard and others (n 33) 535; ISS (n 46) 36.
94
The Constitution preamble.
95
UNHCR (n 71) 9.
96
ibid 10.
97
The Constitution ss 27 and 28.
98
The Declaration of Human Rights 1948 Art 15.
99
ibid; The International Covenant on Civil and Political Rights (1966) Art 24; The United Nations
Convention on the Rights of the Child (1989) Arts 7 and 8; The African Charter on the Rights and
Welfare of Children Art 6; The Constitution ss 20 and 28.
100
Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20.
Neluvhalani-Caquece
12
mindful of the risks of childhood statelessness and the place of birth registrations in the
global provision for identity for all.
101
The lack of administrative processes to cater for stateless persons is a violation of an
individual’s human right which is identified as the root cause for additional human
rights violations as well as an obstacle to human development.
102
Notwithstanding the
fact that South Africa has not ratified the Statelessness Conventions, it is bound to
protect the right to a nationality in terms of its obligations under a range of international
instruments.
103
This would include the right to a nationality in terms of Article 7 of the
Convention on the Rights of the Child, which recognises the right to a name and a
nationality at birth
104
and the African Charter on the Rights and the Welfare of the
Child,
105
which also confirms the rights of a child to a name and a nationality. In
addition, the Constitution enshrines the right not to be deprived of a nationality and a
right to a name and a nationality at birth.
106
Even though there is a lack of dedicated domestic laws on statelessness, some
‘patchwork’ legislation exists, which can allow for access to a nationality.
107
A
significant number of cases on statelessness and those who are affected by the risk of
statelessness have been reported, and as such their adjudication have laid a positive
foundation for the state to implement mechanisms to provide solutions for
statelessness.
108
Some safeguards are included in the South African Citizens Act,
109
however, there are no regulations to bring the safeguards into effect despite the decision
in the case of DGLR v Minister of Home Affairs (DGLR case).
110
Therefore, legal
precedence has provided an avenue that seeks to provide redress in cases of
101
Mihloti B Sherinda and Jonathan Klaaren, ‘The South African Constitutional Court Decides Against
Statelessness and In Favour of Children: Chisuse v Director-General, Department of Home Affairs
[2020] ZACC 20’
Decides_Against_Statelessness_and_In_Favour_of_Children_Chisuse_v_Director-
General_Department_of_Home_Affairs_2020_ZACC_20> accessed on 30 March 2022.
102
Kingston (n 1) 75.
103
The Constitution ss 20 and 28; Dugard and others (n 33) 537; Convention on the Nationality of
Married Women of 1957; Convention on the Elimination of all Forms of Racial Discrimination of
1965; Convention on the Elimination of all Forms of Discrimination Against Women of 1979;
Convention on the Rights of a Child of 1989; International Covenant on Civil and Political Rights of
1966; African Charter on the Rights and Welfare of the Child of 1999.
104
The Convention on the Rights of a Child of 1989 Art 7.
105
The African Charter on the Rights and the Welfare of the Child 1990 Art 6.
106
The Constitution ss 20 and 28(1)(a).
107
Jessica P George and Rosalind Elphick Promoting Citizenship and Preventing Statelessness in South
Africa (Lawyers for Human Rights, 2014) 21.
108
Julia Sloth-Nielsen and Marilize Ackermann, ‘Un accompanied and Separated Foreign Children in
the Care System in the Western Cape – A Socio-legal Study (2016) 19 PER 18–19; Jessica P George
and Rosalind Elphick, ‘Statelessness and Nationality in South Africa’ (2013)
109
The South African Citizenship Act 1995 s 2(2).
110
DGLR and KMRG v Minister of Home Affairs 38429/13.
Neluvhalani-Caquece
13
statelessness, where there is a gap in legislation. However, it is important to note that
until such time as the Department of Home Affairs promulgates the regulations to ensure
access to a nationality at birth for a child who is born stateless, the status quo prevails.
111
The inability to access a nationality through jus soli in terms of section 2(2), continues
to create an administrative gap in the Citizenship Act.
112
An example of inadequacies in the legal framework is illustrated in the case of Mulowayi
v Minister of Home Affairs (Mulowayi case),
113
where a child born to parents who are
permanent residents, was prevented from obtaining South African nationality because
the provisions of the South African Citizenship Amendment Act (SACA)
114
do not
allow automatic citizenship for children born to South African permanent residents.
115
In their bid to obtain a solution, the parents sought to naturalise as South Africans. This
process required them to renounce their Congolese nationality as Congolese law does
not allow for dual nationality.
116
Their application for naturalisation was denied in terms
of Regulation 3(2)(a),
117
that stipulates a minimum period of ten years’ permanent
residency as a qualification for citizenship in contradiction with the period of five years,
as set out in section 5(1) of SACA. This decision rendered the parents stateless, in
addition to the minor child who was born stateless. The High Court ruled Regulation
3(2)(a) was ultra vires, irrational and inconsistent with section 238 of the Constitution
and therefore invalid.
118
The declaration for invalidity was given, pending a
confirmation order by the Constitutional Court. Access to the right to a nationality was
examined critically by the Constitutional Court. It was noted that the right to nationality
extends to all within the South African territory and therefore people who are de jure
stateless and children born from such parents who would otherwise become stateless,
must have access to mechanisms that would allow them a nationality.
119
The
Constitutional Court was clear in that the High Court had erred in the suspension of its
order. The Constitutional Court examined the routes available for access to a nationality
and none of them were available for the minor child.
120
Under the third route, the minor
child would have to wait until he turns eighteen to obtain a nationality in 2025.
121
The
111
DGLR case.
112
Citizenship Act of 1995.
113
Mulowayi v Minister of Home Affairs [2019] ZACC 1.
114
The South African Citizenship Amendment Act 2010
115
The South African Citizenship Amendment Act 2010 s 2(3).
116
ibid s 5(1)(h).
117
Regulations on the South African Citizenship Act 1995.
118
Section 238(a) states that an Executive organ of the state in any sphere of government may delegate
any power or function to any other executive organ of state, provided the delegation is consistent
with the legislation in terms of which the power is exercised or the function is performed.
119
Dugard and others (n 33)537.
120
SACA s 2 (2); Firstly, to be born to either within or outside South Africa to a South African parent.
Secondly, a person who is not a citizen or national of any other country or has no right to such
citizenship and who is registered according to the Births Deaths Registration Act and thirdly, a person
who was born in South Africa to parents with permanent residency in South Africa and who has lived
his/her whole life in South Africa.
121
ibid s 2(3).
Neluvhalani-Caquece
14
Constitutional Court judge’s obiter comments highlighted that the available route for
the minor child to attain citizenship at the age of majority contradicted his constitutional
right to a nationality at birth.
122
To date, the Department of Home Affairs has not
complied with the order made in the case of Minister of Home Affairs v DGLR
123
to
promulgate regulations that allow a child born stateless to apply for a nationality by
means of section 2(2) of the Citizenship Act. Until such time that regulations are
available, the Mulowayi minor child remains stateless until 2025 when he becomes a
major, unless this is challenged through further litigation. Inability to have a nationality
will affect his ability to access many other rights such as the right to education, amongst
others.
The contributory factors to statelessness in South Africa counts colonialism as one of
its origins, as well as the idiosyncrasies of the African continent based on recurrent
identity conflict, that have resulted in the mass expulsion of foreigners.
124
Most of the
longstanding populations affected by statelessness are descendants of people ‘who
moved or who were forcibly moved’ from one part of Africa to another during the
colonial period. These people belonged to ethnic groups whose traditional territory was
divided among one or more new states.
125
They then experienced difficulties in
obtaining birth registration for children born stateless or born to stateless parents,
making statelessness an inter-generational issue.
126
A generational statelessness was
caused by migrant workers from neighbouring countries who never returned to their
countries of origin.
127
In this context, discriminatory citizenship laws created during
colonisation and Apartheid, combined with economic migration, led many migrant
labourers and their descendants to be affected and finding themselves without a
nationality.
128
These are some of the causes of statelessness in South Africa and are not
exhausted in this article. The South African domestic legal framework only allows the
conferral of nationality through jus sanguine.
129
It is unfortunate that colonial
boundaries are the boundaries that exist even to date and solutions would need to be
found, based on the existing boundaries. Manby confirms that colonial boundaries have
122
Section 28(1) of the Constitution.
123
Minister of Home Affairs v DGLR [2016] 1051/2015.
124
AU ‘Draft Protocol to the African Charter on Human and Peoples Rights on the Specific Aspects of
the Right to a Nationality and the Eradication of Statelessness in Africa: Explanatory Memorandum
2’; Michele E Olivier, ‘The Role of the African Union in Integrating Africa’ (2015) South African
Journal of International Affairs 513.
125
AU (n 124).
126
Dugard and others (n 33) 537; M v Minister of Home Affairs (6871/2013) [2014] ZAGPPHC 649 (22
August 2014) para 18; DGLR and KMRG v Minister of Home Affairs 38429/13 217.
127
Jessica P George and Rosalind Elphick, Statelessness & Nationality in South Africa (Lawyers for
Human Rights 2013) 13; Bronwen Manby, Citizenship and Statelessness in Africa: The Law and
Politics of Belonging (Bloomsbury Publishing 2018) 59.
128
George and Elphick (n 107) 8.
129
Section 2(1) of the Citizenship Act.
Neluvhalani-Caquece
15
real meaning and have created fragile national communities, furthermore, that solutions
must be developed based on the existing boundaries.
130
South Africa has its own peculiar history as it has created different classes of citizenship
along racial lines and ethnic-based distinctions.
131
Ultimately, a majority of black South
Africans had their nominal nationality taken away, and their right to just nationality
attributed to one of the supposedly independent and ethnically designated
‘homelands.’
132
Motshabi states that the ‘western theories we use are inadequate to local
problems and the European lens does not perceive our complexity.’
133
Thus, some argue
for theories that are based on the ‘key features of South African law and society.’
134
They decry the practice of ‘starting with existing schools of jurisprudence’ developed
‘elsewhere for different conditions and requirements’ and ‘imposing them on local
conditions.’
135
By peering through an unconventional lens such as ubuntu, it is argued
that it may assist in identifying solutions for South Africa that may counter the colonial
impact on citizenship and issues of nationality to combat statelessness. Statelessness in
South Africa has not only been created by the legacy of inter-generational migrants. It
is also a problem that has surfaced as a result of domestic laws that do not accommodate
those who are at risk of being stateless.
136
The right to equality is to be enjoyed by everyone as it applies to ‘all persons within the
borders of South Africa.’
137
The courts have interpreted the reference to ‘everyone’ to
refer to all persons, not just South African citizens but also various categories of
immigrants.
138
This includes foreigners who have yet to be lawfully admitted to South
Africa, as they too, have been recognised as beneficiaries of the rights guaranteed in the
Bill of Rights.
139
It is in this context, that an argument for the stateless is advanced.
Section 39 of the Constitution provides that when interpreting the Bill of Rights, every
court tribunal or forum must consider international law.
140
Section 232 of the
Constitution provides that customary international law is law in the Republic unless it
is inconsistent with the Constitution or an Act of Parliament. The Constitution provides
130
Manby (n 127) 2.
131
Bronwen Manby, Citizenship Law in Africa: A Comparative Study (Open Society Foundations, 2016)
65.
132
Bronwen Manby, Citizenship in Africa: The Law of Belonging (Hart Publishing, 2018) 48.
133
Khanya B Motshabi, ‘Decolonising the University: A Law Perspective’ (2018) Strategic Review for
Southern Africa 109.
134
Thaddeus Metz, ‘Ubuntu as a Moral Theory and Human Rights in South Africa’ (2011) African
Human Rights Law Journal 532.
135
Patrick Lenta, ‘Just Gaming? The case of Postmodernism in South African Legal Theory’ 2001 South
African Journal on Human Rights 173.
136
Minister of Home Affairs & Others v DGLR & Another 1051/2015.
137
Section 9(2) of the Constitution.
138
Dawood & Another v Minister of Home Affairs & Others; Shalabi & Another v Minister of Home
Affairs & Others; Thomas & Another v Minister of Home Affairs & Others CCT35/99 para 37.
139
Lawyers for Human Rights & Other v Minister of Home Affairs & Other CCT18/03 para 27.
140
The Constitution s 39(a).
Neluvhalani-Caquece
16
that every child has a right to a name and a nationality from birth.
141
This right to a name
and a nationality exists for both citizens and non-citizens.
142
It is expressly aimed at
protecting those children who at birth, are at risk of statelessness due to not having a
nationality attributed to them at birth through their parents. The right to a nationality at
birth allows and provides a link to a person’s right to dignity, which applies to everyone
regardless of citizenship.
143
It also extends to the right to freedom and security of a
person,
144
as well as the right to freedom of movement.
145
All these rights can be used
as critical tools to protect the rights of the stateless in South Africa.
146
These are the
rights that stateless persons are denied due to their lack of nationality and legal status.
147
The Constitution protects against arbitrary deprivation of a nationality.
148
This right
should also be available for those who are stateless, pending the outcome of their legal
status.
In practice, the implementation of the protection of the right against arbitrary
deprivation of a nationality seems to be non-existent or slow at the very least.
149
150
and the African Charter on the Rights
and Welfare of the Child,
151
provide alternative avenues since South Africa is a state
party and duty-bound to uphold their provisions. South Africa has made inroads in this
regard with the promulgation of the Children’s Act which promotes and protects the
rights of children.
152
Notwithstanding the aforesaid, the lack of procedural guidelines,
inter-departmental strategies, implementation mechanisms, application of constitutional
imperatives and provision of appropriate legal representation for undocumented foreign
children and the stateless in South Africa remain a problem in South Africa.
153
Those who are stateless and unable to prove their nationality, face arbitrary detentions
with no possible deportation and this infringes upon their right to liberty and security.
154
141
The Constitution s 28(a).
142
Elphick and George (n 107) 20.
143
The Constitution s 10.
144
ibid s 12.
145
ibid section 21 of the Constitution.
146
George and Elphick (n 107) 22.
147
ibid 23.
148
The Constitution s 20.
149
DGLR & KMRG v Minister of Home Affairs & Others; Regulations on the registration of Births and
Deaths: GN R128 (2014).
150
151
African Charter on the Rights and Welfare of the Child (1999).
152
Children’s Act 75 of 2005.
153
Anthea van der Burg, ‘A Legal Protection of Undocumented Children in South Africa: Reality or
Myth?’ (LDD thesis, University of the Western Cape 2005) 83.
154
Alice Edwards ‘Back to Basics: The Right to Liberty and Security of Person and Alternatives to
Detention of Refugees, Asylum Seekers, Stateless Persons and Other Migrants’ (2011) UNHCR
Legal and Protection Policy Research Series 17; the right to liberty and security of an individual is a
recognised fundamental right as well as a basic element of legal systems which respect the rule o f
law
Neluvhalani-Caquece
17
Due to their being stateless, no country recognises them as nationals and therefore, they
face protracted stays which inevitably perpetuate human rights abuses.
155
In the case of
Nibigira,
156
the applicant’s petition for release from immigration detention was denied
because it was not possible to deport him. The question to be answered was whether the
applicant could be released to ‘roam South Africa’ only to be arrested again?
The COVID-19 pandemic provides an opportunity for South Africa to actively ensure
that nationality laws include safeguards to protect those who are stateless and to prevent
new cases of statelessness. This is in spite of the declaration that ‘vaccinations are
available for all in South Africa whether one is a citizen or not.’
157
The ideal of making
vaccinations available to all, is unattainable as the administrative processes are not in
line. The vaccination process to be followed, includes registration on an online
platform,
158
supplying information that identifies a person together with proof of
identity in the form of a passport or a South African identity document. Refugees’ and
asylum seekers’ details are required prior to being vaccinated. This procedure limits
accessibility for those who are stateless as they are unable to provide any form of legal
identification.
159
It must be noted that a lack of identification documentation is not
tantamount to statelessness, however, it is usually one of the issues that brings the lack
of nationality or statelessness to the fore in circumstances where individuals seek to
enforce their rights.
160
It is, therefore, incumbent on South Africa to exercise its political will and show its
commitment to protect all those who live in it, by reforming the laws that will recognise
those that are de facto, in situ and de jure stateless.
161
Some positive strides have been
made to include stateless people in the vaccination campaign, even though these have
been made in January 2022, the third year into the COVID-19 pandemic. This
development in South Africa allows people who have no legal identity nor identity
documents to access pop-up stands created for ease of access for those excluded by the
online platform and its requirements. It allows them to be registered under a different
registration category, separate from those who have legal identification.
162
This is a
155
Van der Burg (n 153) 90.
156
Nibigira v Minister of Home Affairs (41256/2011) [2011] ZAGPJHC.
157
President Cyril Ramaphosa Nation Address o n 30 Septe mber 2021 Lockdown Level 1
Announcement.
158
Vaccine Information Portal
2021.
159
At the time of writing this article South Africa’s Department of Health had announced that it could
start vaccinating undocumented persons from October 2021 however, this had not been implemented
as at 7 October 2021. https://www.news24.com/news24/southafrica/news/people-without-identity-
documents-could-be-vaccinated-from-october-health-department-20210827 accessed 7 October
2021.
160
Elphick and George (n 142) 10.
161
Foreword to Conklin (n 54).
162
Mkhululi Chimoio, ‘COVID-19: Vaccinating Stateless Persons in South Africa’ (Africa Renewal E-
magazine, 21 January 2022) 19 -
vaccinating-stateless-people-south-africa> accessed 4 April 2022.
Neluvhalani-Caquece
18
similar route that Kenya and Uganda (amongst others) have used to cater for the stateless
populations and undocumented people in their territory. The National Director of
Lawyers for Human Rights,
163
Wayne Ncube, applauded the government’s move to
vaccinate stateless people. He stated that Lawyers for Human Rights have been working
hard to make sure stateless and undocumented people are vaccinated as they have a right
to healthcare at all health facilities.
164
This could, in the meantime, assist with the challenge of access to vaccinations. More
needs to be done to provide permanent solutions for people who are stateless in South
Africa.
Ubuntu as a Socio-legal Tool for the Stateless
The Constitution is premised on a legal framework of restorative justice, which is
critical to the South African developing democracy.
165
The aim of the Constitution's
transformative nature is to ensure that the state transforms South African society over
time.
166
The philosophical principle of ubuntu is rooted in the adage umuntu ngumuntu
nga banye bantu, which literally translates to mean that ‘a person is a person because of
others.’ Mbingi says that ubuntu denotes the significance of the role of the community
and an individual’s dependence on it (interdependence of the individual and the
community).
167
Ubuntu embodies human rights-based values that are universal in
nature.
168
It is a way of life that accords human dignity and equality to any person,
irrespective of status in a communitarian sense.
169
This value is not exclusively South
African, as it includes the ‘human race’ as a whole.
170
It is acknowledged that ubuntu is
163
A So uth African non-profit organisation that supports marginalised and vulnerable people
south-africa> accessed 4 April 2022.
164
Chimoio (n 162) 19-vaccinating-
stateless-people-south-africa> accessed 4 April 2022.
165
Chuma Himonga, Max Taylor and Anne Pope, ‘Reflections of Judicial Views of Ubuntu’ 2013 PER
370 370–614; Ubuntu has a social ethic and unifying vision of interconnectedness. Gade CBN,
(2012) South African Journal of Philosophy 488.
166
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd. In re
Hyundai Motor Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC).
167
Lovemore Mbingi, Ubuntu: The Spirit of African Transformation Management (Knowres Pub 2005)
70.
168
Jabu Sindane and Ian Liebenberg, ‘Reconstruction and the Reciprocal Other: The Philosophy and
Practice of Ubuntu and Democracy in African Society’ (2000) Politeia 31.
169
Sivhaga Netshitomboni, ‘Ubuntu: Fundamental Constitutional Value and Interpretive Aid’ (LLM
thesis, University of South Africa 1998) 4.
170
James K Khomba, ‘Redesigning the Balanced Scorecard Model: An African Perspective’ (PhD
thesis, University of Pretoria) 160; Matshikhiri C Neluvhalani, ‘Examining the Migratory Theory of
Black Africans into South Africa: A Decolonised Perspective’ (PhD thesis, University of Venda
2017) 16.
Neluvhalani-Caquece
19
an ideal which remains unimplemented in the global village, and also in South Africa,
which has a history of xenophobia that is against the ethos of ubuntu.
171
Ubuntu as a philosophy was instrumental in transforming post-apartheid society and
this was reflected by its inclusion in the postamble of the 1993 Constitution,
172
which
specifically enjoined courts to promote values that underlie a democratic society based
on freedom and equality. The post amble provides as follows:
The adoption of the Constitution lays the secure foundation for the people of South
Africa to transcend the division and strife of the past, which generated gross human
rights, the transgression of humanitarian principles in the violent conflicts and a legacy
of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is
a need for understanding but not for revenge, a need for ubuntu and not for victimisation.
Even though the principle of ubuntu is not included in the 1996 Constitution, it is argued
that its ethos remains based on the constant reference to human dignity.
173
It is envisaged
that the revisiting African community practices from the past,
174
would be another
avenue which may assist in the transformation of the nationality legislative framework
in going forward. This will aid in creating solutions that would assist those who are
stateless so that they can receive human rights protection and access all rights by virtue
of being human. This is also founded on the rule of law, the constitutional legal
framework, human rights instruments and the socio-legal concept of ubuntu.
175
In
strengthening the argument for creating solutions based on ubuntu, the adage umuntu
akalahwa
176
which translates to mean that ‘a person cannot be thrown away,’
underscores the need to respect human life and dignity whatever the circumstances.
177
171
Jonathan Crush, ‘The Dark Side of Democracy: Migration, Xenophobia and Human Rights in South
Africa’ (2000) International Migration 105; Matt Mogekwu, ‘African Union: Xenophobia as Poor
Intercultural Communication’ (2005) Ecquid Novi 5; Alois B Sibanda, ‘Unmasking the Spectre of
Xenophobia: Experiences of Foreign Nations Living in the “Zone of Non-being”: A Case Study of
Yeoville (MA thesis, University of South Africa 2014) 13. This article does not discuss the aspects
of xenophobia.
172
The Interim Constitution 1993 postamble; S v Makwanyane 1995 (6) BCLR 665 (CC).
173
The Constitution ss 1, 7, 10, 39 and item 22 of Schedule 6; S v Makwanyane para 311 and 328; Azhar
Cachalia and others, Fundamental Rights in the New Constitution (Juta 1 994) 34; of the African
Charter on Human and People’s Rights (1986 Art 27.7). It creates a d uty on an individual to
strengthen cultural values in a spirit of tolerance; Netshitomboni (n 169) 7.
174
Michael Gelfand, ‘The Genuine Shona: Survival Values of an African Culture’ (Mabo 1973) 57–90.
175
The Universal Declaration of Human Rights (1948) Art 15; The International Covenant on Civil and
Political Rights (1966) Art 24; The United Nations Convention on the Rights of the Child (1989)
Arts 7 & 8; The African Charter on the Rights and Welfare of the Child (1999) Art 6; The Constitution
of the Republic of South Africa 1996 ss 20 and 28.
176
Oscar Dlomo, ‘Strategic Advantages that can be Derived from Ubuntu’ (Seminar on Incorporation
of Ubuntu into a Genuinely South African Approach to Management, Midrand, 30 October 1991).
177
Netshitomboni (n 169) 6.
Neluvhalani-Caquece
20
The Bill of Rights enshrines the rights of all people in South Africa and affirms the
democratic values of human dignity, equality and freedom.
178
These are the right to
equality,
179
the right to human dignity,
180
the right to life,
181
and the right to freedom and
security of the person.
182
Of significance, is the fundamental right to a nationality,
183
healthcare, food, water and social security for all,
184
which, in the context of a pandemic
does not distinguish between nationals, non-nationals, refugees, asylum seekers and the
stateless, as COVID-19 affects everyone.
The socio-legal principle of ubuntu plays a pivotal role in advocating for legal reform
that will entrench the essence of equality, human dignity, communalism, conciliation
and inclusiveness in order to enhance the constitutional interpretation landscape.
185
Himonga states that customary law and ubuntu are not synonymous but that ubuntu is
an integral value that informs the regulation of interpersonal relations and dispute
resolutions which are inherent in customary law.
186
At the very core of legislative
reform, ubuntu is instrumental in arguing the case for the stateless.
187
It is a philosophy
that promotes the common good of society, which is trans-cultural and, if embraced,
would enable South Africans to succeed in their quest for reconciliation and nation-
building.
188
Ubuntu is one alternative that has not been traversed enough in as far as it pertains to
nationality and statelessness.
189
This is because states are often reluctant to acknowledge
the presence of stateless persons on their territories, and they are rarely counted in
official government statistics as a resident category.
190
Ubuntu underpins the rationale
that not one African born in Africa should be stateless in (South) Africa.
Conclusion
The article highlights the problem of statelessness and access to vaccination during the
COVID-19 pandemic. It examines the good practices being implemented by some
178
The Constitution s 7.
179
ibid s 9.
180
ibid s 10.
181
ibid s 11.
182
ibid s 12.
183
ibid s 28.
184
ibid s 27.
185
Himonga and others (n 165) 370.
186
ibid 373.
187
Vhonani S Neluvhalani, ‘An Analysis and Reassessment of the Immigration Legislative and
Administrative Framework in Combating Statelessness: A Decolonized View’ (LLD thesis, NWU
Potchefstroom 2021); Universal Declaration of Human Rights Art 15; Chapter 2 of the Constitution.
188
Joe Teffo, ‘Botho/Ubuntu as a Way Forward for Contemporary South Africa’ (1998) Word & Action
38(365) 5.
189
Neluvhalani (n 187).
190
Neluvhalani (n 28) 208.
Neluvhalani-Caquece
21
countries in as far as they relate to the treatment of those who are stateless in their
territories and their access to vaccination. The article found that some countries were
active in creating solutions to cater for stateless people by providing registration
platforms that allow them to register for vaccination, even though they had no legal
identity. For example, the United Kingdom created a firewall between the Immigration
and Health departments in order that the identity of the stateless person remains
protected and his/her information is not shared with the immigration authorities. Even
though this does not address the challenge of statelessness or legal identity, it provides
a temporary relief mechanism that ensures that all people within the territory have
access to vaccines without fear. It should be noted that the United Kingdom has ratified
the Statelessness Conventions and has a Statelessness Determination Procedure. South
Africa still has a long way to go as it does not make provision for stateless people to
register for vaccines. The cases of DGLR, Chisuse and Mulowayi are examples of
statelessness in South Africa. Despite court judgments, the regulations to bring effect to
section 2(2) of the Citizen’s Act remain outstanding. These are but some of the cases
and are not representative of the depth of the challenge of statelessness due to a dearth
of accurate statistics. The article recommends that in addition to international and
regional human rights standards, soft law remains a tool that provides best practices and
guidelines which may be adopted in addressing challenges related to statelessness.
Ubuntu must be considered as one of the underlying values that underpin transformation
of nationality laws. It can be used as a basis to advocate for the stateless as it is aligned
to the transformative nature of the Constitution and emphasises the importance of the
individual and his/her inter-connectedness to the community. The adage umuntu ngu
muntu nga banye bantu is testament to the fact that the COVID-19 pandemic requires
an inclusive approach that provides access to all people in South Africa regardless of
their legal status, as COVID-19 affects everyone.
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S v Makwanyane 1995 (6) BCLR 665 (CC).
Shalabi & Another v Minister of Home Affairs & Others.
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Children’s Act of 2005.
Citizenship Act 88 of 1995.
Citizenship Amendment Act of 2010.
Constitution of the Republic of South Africa, 1996.
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Convention on the Elimination of All Forms of Racial Discrimination (1965).
Convention on the Reduction of Statelessness (1961).
Disaster Management Act of 2002.
International Covenant on Civil and Political Rights (1966).
Interim Constitution of 1993.
Introductory note by the Office of the UNHCR 1961 Convention.
UNHCR Global Action Plan 2024.
Universal Declaration of Human Rights of (1948).
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