"Being born in South Africa doesn’t automatically make you South African: court ruling, there are possible implications for BOTH B-BBEE and the Employment Equity Act.
A recent court ruling has clarified the rules around South African citizenship, and it turns out that being born in the country doesn’t automatically make you a citizen of South Africa.
The case involved two Zimbabwean parents who were living in South Africa on work and visitor visas. They had three children who were born in South Africa, but the children were not automatically granted South African citizenship because their parents were not permanent residents.
The parents challenged the decision, arguing that their children should be considered South African citizens because they were born in the country. However, the court ruled in favour of the government, saying that the children inherited their parents’ Zimbabwean citizenship.
The court did, however, give the parents an alternative route to citizenship. If the parents become permanent residents of South Africa, their children can apply for citizenship by birth under section 3 of the Citizenship Act.
The court case states that children born in South Africa to non-South African parents do not qualify for South African citizenship if their parents are not permanent residents. However, the court case does not specifically address the issue of whether or not these children are considered South Africans for the purposes of B-BBEE. The B-BBEE Codes of Good Practice define black South Africans as "persons who are African, Coloured or Indian in terms of the Population Registration Act, 1950 (Act 30 of 1950), as amended." They also include persons who are "descendants of Africans, Coloureds or Indians."
The Population Registration Act was repealed in 1991. This means that it is no longer clear whether the definition of black South Africans in the B-BBEE Codes of Good Practice still applies to children who were born in South Africa to non-South African parents.
The definition of black is relatively straightforward. However, whether someone is South African is more complex. This is determined by section 3 of the Citizenship Act.
It is possible that the definition of South Africans in the B-BBEE Codes of Good Practice will one day need to clarify whether someone is South African?
This ruling has potential implications for the Broad-Based Black Economic Empowerment (B-BBEE) scorecard, which uses citizenship as a measure of black ownership. The ruling means that children who are born in South Africa to non-South African parents may not be considered South African for the purposes of B-BBEE. What about the ruling that they had to have suffered under apartheid and applied for citizenship prior to 1994 to qualify as B-BBEE?
The main thing on this to keep in mind is that one cannot make the automatic assumption that when a child is born in South Africa to black non-South African parents, that such a child will automatically benefit under B-BBEE. Citizenship may be verified online from the Department of Home Affairs. "
Therefore, when providing advice to a client where a child, as described above, benefits from B-BBEE, ask to see the birth certificate, or run the correct query on the Nexus Intel System. If the birth certificate or citizenship enquiry confirms the child is a South African citizen, you are good to go.
This could have a negative impact on the scorecards of companies that employ these children.
The ruling is a reminder that citizenship is not always straightforward, and that there are different ways to acquire it but bear in mind the "prior to 1994 requirement. ""
The issue raised is “knowingly or unknowingly “. As consultants, we have to ensure we are aware of the laws pertaining to our business. As such Where we know or believe there are Zimbabweans employed in the companies especially in Management, we need to check IDs and Birth certificates.
Implications for Employment Equity Act
The Employment Equity Act (EEA) is a South African law that promotes equal opportunity in the workplace. The EEA applies to all employers with 50 or more employees.
The EEA requires employers to take steps to ensure that their workforce is representative of the demographics of the country. This means that employers should have a workforce that is representative of the population in terms of race, gender, and disability.
The ruling on citizenship could have implications for the EEA. If children who are born in South Africa to non-South African parents are not considered South African citizens for the purposes of B-BBEE, then they may also not be considered South African citizens for the purposes of the EEA.
The EEA does not explicitly state that children who are born in South Africa to non-South African parents are not considered South African citizens for the purposes of the EEA. However, it is important to note that the EEA is a complex law, and the implications of this ruling are not yet fully clear.
If you are an employer, you should consult with an employment equity and B-BBEE consultant to understand how this ruling may affect your rating.