The conclusion of the home affairs department investigation into the citizenship of Chidimma Adetshina, who withdrew from the Miss SA competition amid damning preliminary findings from the department regarding her legal status, is being eagerly awaited.
Depending on the final outcome of the investigation and findings, experts said she might find herself stateless.
On Wednesday, the home affairs department revealed that sufficient reasons exist to believe that the person recorded in the records as Adetshina’s mother may have committed fraud and identity theft.
According to the department, the investigation was initiated based on the official request from the Miss SA organisation and the consent provided by both the contestant and her mother.
There had also been an uproar from many South Africans who questioned Adetshina's identity, arguing she was ineligible to compete for the title because of her Nigerian-born father and Mozambican-born mother, despite being born in South Africa.
Adetshina has since pulled out of the beauty contest stating safety reasons.
Legal expert Kevin Smith said it was important to emphasise that at this juncture the department’s investigations into the matter are yet to be concluded and the conclusions will shed more light on the effect the current information shared by the department in their preliminary investigations may have on Adetshina’s legal status.
“In terms of the criteria for entering the Miss SA pageant, it is a requirement for a contestant to be a South African citizen who holds a valid identity document. Given that the department has expressed the view that prima facie evidence of fraud and potential identity theft exists, Adetshina’s citizenship status is in question, though the department and specifically the minister are yet to make an official pronouncement of such status as the investigations are ongoing,” he said.
Legal expert Nthabiseng Dubazana said with regard to the law as it stands it will depend on what the investigations reveal at the end whether there was indeed fraud.
“The mother may just be dealt a band hand where she faces criminal charges but the Miss SA contestant may find herself being stateless because her status in the country may be revoked if it is confirmed that her mother got her status fraudulently.”
However, Dubazane said Adetshina may not have faced any criminal offence because the offence was committed while she was still a minor.
“So she would not have intentionally misrepresented herself. The criminal charges will most likely fall on the mother and the father if he had any knowledge of what the mother had done,” she said.
Given that the current system is heavily dependent on human input and management, the system is vulnerable to the character and integrity of the individuals it depends on for its functioning
— Kevin Smith, legal expert
Smith said it was also important to note that the department expressed that Adetshina “could not have participated in the alleged unlawful actions of her mother, as she was an infant at the time”.
“As such, she will not face any legal proceedings with respect to the fraud itself as she could not have committed or been involved in the commission of the alleged fraud,” Smith said.
This, however, does not mean that she won't be affected by the consequences of such fraud as it brings the obtaining of her citizenship into question.
“Depending on the extent of fraud discovered, the exact methodology of the fraudulent scheme and the role played by all implicated individuals, a proclamation will have to be made on whether her citizenship status, having been obtained fraudulently, should be revoked or invalidated, whether she will be declared illegal, whether a “marker” would be placed on her identity number in the Population Register (which would be an indication of the first step in the process to deprive Adetshina of her citizenship), or whether she would be deported,” he said.
He said the department, alongside the minister, would likely weigh whether she should be punished for the crimes committed by third parties alongside the rule of law prohibiting someone from benefiting from the crimes committed by third parties.
According to Smith, Adetshina may also be able to request authorisation from the minister of home affairs in accordance with section 32 of the Immigration Act, read with regulation 30, to allow her to remain in the country on condition that she can demonstrate in writing that: she was unable to apply for status due to reasons beyond her control and that she would be in a position to apply for such a visa immediately.
“This would be an attempt to regularise her status from within the republic. The effectiveness of this step would only be confirmed once the investigations are completed and a formal ruling on her status is given,” he said.
Smith said the investigation could have grave consequences for both Adetshina and all implicated family members.
Given that her citizenship was granted on the basis of alleged misrepresentation by her mother that her mother was, in fact, a South African citizen, Smith said section 48 of the Immigration Act may apply.
Section 48 of the Immigration Act provides: “No illegal foreigner shall be exempt from a provision of this act or be allowed to sojourn in the Republic on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain the Republic through error or misrepresentation, or because his or her being an illegal foreigner was undiscovered.”
However, he said all this is subject to the conclusion of investigations and a formal pronouncement being made.
Smith said this case reveals that all systems are susceptible to fraud and corruption, and archaic systems are even more at risk.
“Given that the current system is heavily dependent on human input and management, the system is vulnerable to the character and integrity of the individuals it depends on for its functioning. This is highlighted by the department making specific mention of the fact that it would broaden its investigation to identify and pursue any officials involved in the alleged fraudulent scheme, illustrating that such fraud is a result of a concerted effort by various individuals within the system,” he said.
Dubazane said vulnerability in the current system has always been there and is nothing new.
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