‘Foreigners’ in the land of their birth
Two brothers born in South Africa to Angolan refugees have won their legal fight for citizenship in the only country they have ever known. But the Department of Home Affairs still wants to deny the…
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8 July 2019
Jonathan Jose calls himself a foreigner. But he’s never set foot outside of South Africa.
“If I was South African, I would know I am South African,” said Jonathan, 21, sitting on the couch in the dimly lit living room where he sleeps at night.
He shares the tiny Yeoville apartment with his mother, older brother Joseph “Chris” Jose, 23, who sleeps on a mattress on the floor, their younger brother and two other people who are subletting space in the apartment from the family.
This comes after the North Gauteng High Court in Pretoria ruled earlier this year that the Department of Home Affairs grant the two brothers South African citizenship. They were born in South Africa after their parents fled the 27-year-long Angolan Civil War in 1994 as refugees.
“When xenophobia happens, I am part of that. I live with that fear because we lived for so long feeling like foreigners,” Jonathan said. “I adapted to think that maybe I am a foreigner.”
Our hearts do not feel South African
His brother, Chris, added: “Maybe my parents can say I am South African, but my heart does not feel South African. We feel rejected. How can you like something that doesn’t like you back?”
Their parents settled in Johannesburg after arriving in 1994, but their father later disappeared. The brothers were raised by their single mother who sells vegetables outside Shoprite on Raleigh Street, a few blocks from their apartment.
Jonathan and Chris Jose qualified to apply for South African citizenship when they turned 18, under a provision that was introduced into the Citizenship Act on 1 January 2013. Section 4(3) of the act stated that children born in South Africa to non-South African parents who didn’t hold permanent residence, but had lived in the country since their birth, were allowed to apply for citizenship.
Despite the introduction of this provision more than six years ago, the department failed to put in place the necessary administrative arrangements to allow people who qualify to apply for citizenship.
Legal muscle
Jacquie Cassette is the head of law firm Cliffe Dekker Hofmeyr’s pro bono and human rights unit, and one of the lawyers representing the brothers. She said this failure made it all but impossible for them to apply for citizenship.
“I believe I was in grade 10 and I had a teacher who made sure we went to home affairs when we were 17 or 18 to go and apply for IDs,” Jonathan said. “I went to home affairs and this lady said I can’t apply. She said, ‘You are not allowed, that is the law, that is how it is here.’ They just say no, they don’t tell me why. They say no and don’t give us a solution.”
The brothers submitted multiple applications to be considered for South African citizenship. They were met with unhelpful officials and rejections every step of the way. Cassette’s team finally took on the case and after a protracted legal battle, the high court ruled in their favour in March.
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Acting judge Seena Yacoob described the department’s dealings in this matter as “unfortunate” and “inconsistent with a number of governing principles” of the Constitution.
“Rather than say what procedure is to be followed, [the department] simply say that one has followed the wrong procedure. Rather than respond and say we are unable to make a decision in the time you ask … they simply do not provide any response,” Yacoob said in her judgment.
Yacoob ruled that the two brothers qualified for citizenship and ordered the department and its minister to grant Jonathan and Chris Jose citizenship within 10 days of the judgment.
The department has filed a notice to appeal the judgment. Department of Home Affairs spokesperson David Hlabane failed to answer a list of specific questions, including whether or not the department had taken steps to introduce the administrative process for the provision under which the two brothers qualified to apply for citizenship. Instead, he said: “We have appealed the matter, and are unable to comment further as the matter is before the court.”
The case has been further delayed by the court record going missing. Cassette said a duplicate file had to be created before the court could hear the appeal.
The Jose brothers’ lawyers plan to oppose the department’s application for leave to appeal, according to Cassette. “If the judge refuses to grant them leave to appeal, then they will have to – and probably will – petition the Supreme Court of Appeal for leave to appeal.”
Harsh realities of not being a real citizen
The brothers are aware of the department’s plans, but just want the matter to be finalised so they can gain citizenship and identity documents to restart their lives.
“There are cases whereby we were not treated at hospitals because of a lack of documents, so we were forced to buy medication. And there are times you don’t have money to buy medication, so we just live and fight sickness,” Jonathan said.
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Without identity documents, the brothers have been unable to open bank accounts or register with the South African Revenue Service, which has deprived them of work opportunities in the past.
“When I finished matric in 2016, I had friends going to university and I was just sitting here at home thinking, what am I going to do because I can’t really get a job? Some jobs require bank statements and I am not allowed to open a bank account. So I was basically just sitting around and hoping to do piece jobs. It was very difficult,” Jonathan said.
Chris added that they often had to work seven days a week in precarious informal jobs, sometimes earning as little as R350 a week.
“For us, we are men, and our mom, she sells [vegetables] on the street. Sometimes we struggle to pay rent. We have to support our mom, but we can’t do that because we can’t really find a valid job with any real money. It is just piece job, piece job. There are times when we sleep without light because we can’t afford it,” Jonathan said.
“Sometimes they shut the house up and we are forced to sleep outside until we can afford to pay rent. Sometimes it’s another month we are forced to sleep somewhere else until we can get the money and pay and come back here,” he said.
Despite these problems and the resistance they have faced from home affairs department officials, the two brothers don’t want to live anywhere else.
“I’ve never left South Africa. The only place we have been is Durban. We’ve never left the country at all. I never even thought about leaving the country. I have been here all my life,” Jonathan said.
“If you compare Angolan people and us, we don’t even know Portuguese. All I know is ‘hello’ in Portuguese and that is all. I adapt well with South Africans, I can speak a bit of isiZulu and I have South African friends. I am not Angolan at all, that is how it is.”
