Are Namibian citizens resident on the territory of Namibia…

Please could we engage on the essay below:

SOUTH AFRICAN ADMINISTRATION OF SOUTH-WEST AFRICA (NAMIBIA) AND ITS' LEGAL STATUS

Union of South Africa-Act No 1href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html of 1926

• 1. South-West Africa was first administered under the 1910 established Union of South Africa under Act No 1href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html of 1926 (1 August 1926), Section 30 (1) which stated:

•a. "the Union includes also, in addition to the limits of the Union of South Africa, the Mandated Territory of South-West Africa.".

South African Citizen Act No 44 of 1949 (herein refer to as the "Old Act")

• 2. The position after the National Party took political power of the Union of South Africa in 194href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html did not alter the administrative role over South-West Africa. The Nation Party Administration introduced the South African Citizen Act of 1949, which contained a wide range of different requirements over the years. The Old Act determined a person's claim to South African citizenship in respect of births in Section 2 as follows:

(1) Every person born in the Union prior to the date of commencement of this Act who was or is, in terms of sub-section (3) of this section or section thirteen, deemed to have been, a Union national immediately prior to that date, shall be a South African citizen.

(2)Every person born in South-West Africa on or after the date of commencement of the British Nationality in the Union and Naturalization. and Status of Aliens Act, 1926 (Act No. 1href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html of 1926), but prior to the date of commencement of this Act shall be a South African citizen if

(a) at the commencement of this Act he resides in the Union or South-West Africa; or

(b) at any time after the commencement of this Act he is lawfully admitted to the Union or South-West Africa for permanent residence therein,

and he did not at any time whilst outside the Union or South-West Africa, by some voluntary and formal act, other than marriage, acquire the citizenship or nationality of a country other than the Union.

(3)Any person born in the Union prior to the date of commencement of this Act who would but for the provisions of section one of the Naturalization and Status of Aliens Amendment Act, 1942 (Act No. 35 of 1942), have been a Union national immediately prior to the date of commencement of this Act, shall, for the purposes of sub-section (1), be deemed to have been a Union national on that date.

• 3. From the above section, we will note that, every person born in the Union of South Africa (including South West Africa) prior to the date of commencement of the Old Act and there-after, is a South African citizen.

South African citizenship Act No href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.htmlhref="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html of 1995 (herein refer to as the "Act")

• 4. According to the South African citizenship Act No href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.htmlhref="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html of 1995 There are three ways in which a person can be a citizen:
• a. By Birth. Citizenship by birth are legal rights for anyone who can prove the facts of birth and parentage;

• b. By Descent. Citizenship by descent are legal rights for anyone who can prove the facts of birth and parentage; and

• c. By Naturalization. Citizenship by naturalization is not a legal right. It can be granted or refused by the Minister of Home Affairs at his or her discretion.
• 5. In terms of the Act, a child born in South Africa to parents where one was either a South African citizen or a South African permanent residence holder at the time of the child's birth, will be a South African citizen by birth in the case of births from October 1995, when the Act came into operation.

• 6. However for our purposes, the relevant provision states clearly that every person born in South-West Africa on or after 1 August 1926 but prior to 2 September 1949 shall be a South African citizen on condition that
• a. He/she resided in the Union or South-West Africa on the commencement date of the Old Act; or

• b. any time after 1949 he is lawfully admitted to the Union or South-West Africa for permanent residence therein; and

• c. he/she did not at any time whilst outside the Union or South-West Africa, by some voluntary and formal act, other than marriage, acquire the citizenship or nationality of a country other than the Union.
• 7. The Old Act also provides for person born between 1949 and 21 March 1990. Section 3 reads as follows:

3. Persons born in the Union after date of commencement of this Act.

(1) Every person born in the Union on or after the date of commencement of this Act who is not a Prohibited person under any law relating to immigration shall, subject to the provisions of subsection (2), be a South African citizen.

(2)No person shall be a South African citizen by virtue of sub-section (1) if, at the time of his birth -

(a)his father -

(i) was a person enjoying diplomatic immunity in the Union in terms of any law relating to diplomatic privileges, or was a career representative of the government of another country, or was a person employed in the embassy or legation of such a government or in the office of such a career representative, or was a member of the household or a servant of any such person; and

(ii) was not a South African citizen or had not been lawfully admitted to the Union for permanent residence therein,

and his mother was not a South African citizen; or

(b) his father was an enemy alien and the birth occurred at a place under occupation by the enemy and his mother was not a South African citizen; or

(c)his father was an enemy alien without the right of permanent residence in the Union and was interned or detained In custody in the Union and his mother was not a South African citizen; or

(d)his father was a prohibited person or had no right of permanent residence in the Union under the law then in force in the Union and his mother was not a South African citizen.

(3)A person born in the Republic out of wedlock of a mother who at the time of his birth -

(a)was not a prohibited person; and

(b)had no right of permanent residence in the Republic,

shall, if he is adopted by a South African citizen in accordance with the Child Care Act, 19href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html3 (Act No. 74 of 19href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html3), be a South African citizen

• href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html. From the above section we will note that to be a South African Citizenship (a person was born between 1949 and 21 March 1990) he/she must prove:
• a. that the birth took place in the union

• b. the date of birth, and

• c. that his or her father was not a prohibited immigrant at the time of the birth. This provision was relaxed after 1 June 1961[1].
• 9. According to the definition of Union in the Old Act, Union includes any part of South Africa, now included in the Union and (except in section two and five) also the territory of South - West Africa. This means that section 3 mentioned above is also applicable to persons born in South West Africa.

South African Citizenship At Attainment Of Independence By Namibia Regulation Act No. 74 Of 1990

• 10. However, the last Apartheid draconian act over the people of South-West Africa (Namibia), was the South African Citizenship At Attainment Of Independence By Namibia Regulation Act No. 74 Of 1990 (Section 2) states as follows:

Notwithstanding anything to the contrary contained in any other law, any South African citizen who on 21 March 1990 has ordinary residence in the territory shall, with effect from that date, cease to be a South African citizen:

Provided that a person who was born in the Republic, or a natural parent or grandparent of whom was born in the Republic, shall not cease to be a South African citizen.

• 11. The South African Citizenship at Attainment of Independence by Namibia Regulation Act provides that "ordinary residence" means he or she is ordinarily resident in the Union (also includes the territory of South-West Africa) and that he or she has been so resident for a continuous period of not less than one year immediately preceding the date of his application, and that he or she has, in addition, been resident in the Union (also includes the territory of South - West Africa) for a further period of not less than four years during the eight years immediately preceding the date of his or her application
• 12. Section 3 of the South African Citizenship at Attainment of Independence by Namibia Regulation Act states that notwithstanding anything to the contrary contained in the Old Act, no person born in the territory on or after 21 March 1990, shall be a South African citizen by birth.
• 13. Section 4 of the South African Citizenship At Attainment Of Independence By Namibia Regulation Act states that If any person who in terms of the provision of section 2 of same, ceased to be a South African citizen, returns to the Republic for permanent residence therein or intends residing permanently in the Republic, as the circumstances may be, and is not a prohibited person under the law then in force in the Republic, the Minister may upon application in the form prescribed under the Old Act, allow such person to resume his former South African citizenship and issue to him a certificate to that effect in the form prescribed under the said Act.
• 14. The South African Citizenship at Attainment of Independence by Namibia Regulation Act was repealed by the Act.
• 15. Section 2 of the Act provides that any person who immediately prior to the date of commencement of the Act, was a South African citizen by birth shall, subject to the provisions of subsections (2) and (3), be a South African citizen by birth. Subsections (2) and (3) are not important for our immediate purposes.
• 16. Nonetheless, immediately prior to the date of commencement of the Act, the South African Citizenship at Attainment of Independence by Namibia Regulation Act was enforce and provided that any South African citizen who on 21 March 1990 had ordinary residence in the South West Africa shall, with effect from that date, cease to be a South African citizen.
• 17. This means that South Africans (born in South West Africa) ordinarily residing in South West Africa lost their citizenship on 21 March 1990 and immediately prior to the date of commencement of the Act were no more South African citizens.
• 1href="http://www.justanswer.com/south-africa-law/4jrg4-namibian-citizens-resident-territory-namibia.html. The South African government thus one-sidedly without permission or consent of "ordinary residence" in South-West Africa (Namibia), denounced their South African citizenship. As a result, South-West Africa (Namibia) residence who were South African citizens residing on the territory of South West Africa (Namibia), involuntary acquire Namibian citizenship.
• 19. After the commencement of the Act, the South African Citizenship at Attainment of Independence by Namibia Regulation Act was repealed and all persons who lost their right to South African citizenship also lost their right to make application to the Minister, as defined therein, to resume their former South African citizenship. This provision was stipulated under Section 9 of the Act with the deprivation of citizenship on grounds of using citizenship of another country.
• 20. Section 9 of the Act stated:

The Minister may by order deprive a South African citizen of his or her South African citizenship if he or she also has the citizenship or nationality of another country, and has at any time made use of the franchise or the passport facilities of that country or performed such other voluntary act which, to the satisfaction of the Minister, indicates that such citizen has made use of the citizenship or nationality of that other country.

• 21. Section 9 of the Act was in conflict to the Constitution for the Republic of South Africa of 1996 with reference to Chapter 2 - the Bill of Rights as the cornerstone of democracy in South Africa.
• 22. Section 20 under Citizenship of the Bill of Rights states:

"No citizen may be deprived of citizenship."

South African Citizenship Amendment Act, 2004 (Act No. 17 of 2004)

• 23. Section 9 of the Act which regulated the deprivation of South African citizenship in instances where a major South African had made use of the citizenship or nationality of another country was repealed on 15 September 2004 by the South African Citizenship Amendment Act, 2004 (Act No. 17 of 2004)and replaced with the following sanction:
• 24. South African Citizenship Amendment Act, 2004 (Act No. 17 of 2004) states:

A major citizen who:'

• (a) enters the Republic or departs from the Republic making use of the passport of another country; or

• (b) "while in the Republic, to make use of his or her citizenship or nationality of another country in order to gain an advantage or avoid a responsibility or duty is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 12 months.".
• 25. In essence, the South African Citizenship Amendment Act, 2004 (Act No. 17 of 2004) repealed the provision of the Act (Section 9) which allowed the Minister of Home Affairs to deprive a citizen of his or her citizenship for having used the citizenship of another country. Consequently, the previous requirement for the exemptions or letters of permission from the Minister to make use of a foreign passport has now been terminated.
• 26. The question of deprivation of citizenship was inconsistent with the Constitutional right to citizenship under Charter 2, Section 20 of the Bill of Rights that states:

"No citizen may be deprived of citizenship"

• 27. Thus, all Namibians who previously were South African citizens are since 15 September 2004 entitled to have their South African citizenship restored under the South African citizenship Act No --namibian-citizens-resident-territory-namibia.html of 1995 (the "Act") which will grant them two ways to entitlement to South African citizenship which are:
• a. By Birth. Citizenship by birth are legal rights for anyone who can prove the facts of birth and parentage;

• b. By Descent. Citizenship by descent are legal rights for anyone who can prove the facts of birth and parentage.

[1] From that time onwards the mother's position at the time of the birth was been taken into account. If she was a South African citizen, then the child born in South Africa also has a right to South African citizenship