Retrospective Relief: How Courts Have Expanded Access to Citizenship via Section 4(3) of the South African Citizenship Act

South Africa’s citizenship framework balances the need for clear rules on acquisition of nationality with the constitutional imperative to protect dignity, equality, and the right not to be arbitrarily deprived of citizenship (section 20 of the Constitution). Section 4(3) of the South African Citizenship Act 88 of 1995 (as amended) represents a significant step toward inclusivity for individuals born and raised in the country but whose parents were neither citizens nor permanent residents at the time of their birth.

Section 4(3) 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, 1992 (Act 51 of 1992).”

This is not automatic citizenship by birth (which is governed by section 2 and generally requires at least one South African parent). Instead, it creates a pathway to naturalization for long-term “born-and-bred” residents who would otherwise face barriers due to their parents’ immigration status. Applicants must apply upon reaching the age of majority (18), and where the statutory requirements are met, the Minister has no discretion to refuse—citizenship must be granted.

The subsection was introduced by the South African Citizenship Amendment Act 17 of 2010 and came into operation on 1 January 2013. This timing raised an immediate question: Does it benefit only those born on or after that date, or can it apply retrospectively to individuals born earlier who meet the residence and registration criteria and turn 18 after 2013?

The Landmark High Court Ruling: Ali and Others v Minister of Home Affairs (2017)

In Miriam Ali and Others v Minister of Home Affairs and Another (Western Cape High Court, 7 September 2017), five applicants (later joined by others in related matters) challenged the Department of Home Affairs’ (DHA) refusal to process their applications. All were born in South Africa to foreign parents, had lived continuously in the country since birth, and had validly registered births. They turned 18 after 1 January 2013 but were born before that date. (Ali and Others Minister of Home Affairs and Another (15566/2016) [2017] ZAWCHC 94; 2018 (1) SA 633 (WCC) (7 September 2017) The DHA argued that section 4(3) had prospective effect only. On their interpretation, it would only assist children born after 1 January 2013 who turn 18 after 2031. They contended there was “no prejudice” because applicants could pursue other routes, such as permanent residence or refugee status.

The Court rejected this narrow view. Acting Judge Willie held that section 4(3) can and should be interpreted to apply retrospectively to persons born before 1 January 2013 who qualify after the section came into operation. Key reasons included:

• Retrospective application here is beneficial only—it confers rights without removing any vested rights or imposing new obligations.

• A contrary interpretation would undermine the spirit, purport, and objects of the Bill of Rights, particularly the rights to equality and dignity. It would leave long-term residents effectively stateless or in legal limbo in the only country they have ever known.

• The DHA’s approach created arbitrary distinctions among similarly situated individuals and failed to promote constitutional values.

The Court ordered the DHA to accept applications for citizenship under section 4(3) (initially on affidavit pending proper regulations) and clarified that the provision covers qualifying persons “irrespective of whether they were born before or after 1 January 2013.” It did not direct the outright granting of citizenship (to avoid overreach) but required the DHA to process applications properly. (https://www.vvd.co.za/knowledge-base/retrospective-application-of-section-4-3-of-the-south-african-citizenship-act/?print=pdf)

The Legal Resources Centre, which represented the applicants, welcomed the judgment as affirming the right to dignity and preventing wrongful statutory interpretation from rendering people non-citizens in their country of birth.

SCA Confirmation and Further Developments

The Minister appealed to the Supreme Court of Appeal. In Minister of Home Affairs v Ali and Others [2018] ZASCA 169 (30 November 2018), the SCA dismissed the appeal on the core retrospectivity issue (or upheld the beneficial interpretation) and reinforced the need for proper procedures. It ordered the Minister to:

• Promulgate regulations for section 4(3) applications within one year; and

• Pending those regulations, accept applications on affidavit.

Subsequent cases, such as Jose and Another v Minister of Home Affairs (and the related SCA decision in 2020), further clarified that where an applicant meets all the requirements of section 4(3), the Minister is obliged to grant citizenship—there is no residual discretion. Courts have set aside refusals and, in appropriate cases, declared applicants to be South African citizens.

These rulings have practical effect: thousands of young adults born and raised in South Africa to foreign parents (often on temporary visas or other lawful statuses) can now access citizenship, regularize their status, obtain passports, and fully participate in society without the vulnerabilities of perpetual temporary residency.

Broader Context of Judicial Expansion of Citizenship Access:

South African courts have shown a consistent willingness to interpret citizenship laws in a manner that avoids arbitrary exclusion, aligns with constitutional values, and prevents statelessness or effective statelessness. While the high-profile 2025 Constitutional Court ruling in Democratic Alliance v Minister of Home Affairs addressed retrospective restoration of citizenship lost under the former dual-citizenship retention rules (section 6(1)(a)), the Ali line of cases demonstrates parallel judicial relief for those seeking to acquire citizenship.

Courts emphasise that:

• Beneficial statutory provisions should be interpreted generously where they advance constitutional rights.

• Retrospective operation is permissible (and often required) when it does not prejudice existing rights but instead equalizes access to benefits.

• Administrative barriers (such as the absence of regulations or forms) cannot defeat clear statutory entitlements.

  
  

  Practical Implications for Applicants

  
  

  If you were born in South Africa, have lived here continuously since birth, your birth is registered, and you turned 18 on or after 1 January 2013— even if born well before 2013—you may qualify under section 4(3). Ndou Attorneys Inc. regularly assists clients with these applications, including compiling supporting affidavits, addressing DHA refusals or delays, and pursuing judicial review where necessary.

  
  

  Note that applications are not automatic and require proper submission (now supported by regulations or affidavits as interim measure). Supporting documents typically include birth certificates, proof of continuous residence, and identity documents.

  
  

  Through cases like Ali, South African courts have expanded meaningful access to citizenship for a vulnerable group often overlooked in immigration discourse—those who know no other home. This jurisprudence underscores a key principle: citizenship law must serve human dignity and equality, not rigid formalities that consign lifelong residents to second-class status.

  
  

  At Ndou Attorneys Inc., we are committed to helping individuals navigate these pathways. If you believe you or a family member may qualify under section 4(3), or if your application has been refused, contact us for a consultation. Timely legal advice can make the difference between prolonged uncertainty and full recognition as a South African citizen.