ACT DECLARED INVALID
Home Affairs minister has no right to strip South Africans of their citizenship, rules SCA
The Supreme Court of Appeal says even if SA citizens acquire the citizenship of another country, it is unconstitutional to deny them their birthright.
The state has no right to strip South Africans of their birthright – even if they acquire the citizenship of another country.
In a paramount judgment issued on 13 June, the Supreme Court of Appeal ruled that Section 6(1)(a) of the Citizenship Act was unconstitutional and therefore invalid.
This legislation has been relied on since apartheid, to strip exiled freedom fighters and Bantustan residents of their South African citizenship.
In the matter of the Democratic Alliance v The Minister of Home Affairs and another, the SCA ruled that the Minister of Home Affairs cannot deprive citizens of their citizenship, even if they fail to seek permission from the minister to acquire dual citizenship.
Section 6(1)(a) of the South African Citizenship Act stipulates that a South African citizen is automatically stripped of their citizenship if they acquire the citizenship of another country, unless they first seek and receive permission from the Minister of Home Affairs to do so.
The DA had brought the matter to the SCA after the High Court in Pretoria dismissed its earlier challenge of the constitutional validity of S 6(1)(a) of the Citizenship Act 88 of 1995, which provides that adult citizens automatically lose their South African citizenship when they voluntarily and formally acquire citizenship or nationality of another country (except through marriage), without first applying for and obtaining ministerial permission to retain their citizenship.
The appellant had sought, among other things, the following order:
- That S 6(1)(a) of the act is inconsistent with the Constitution and invalid from the date of 6 October 1995;
- Declaring that all people who had lost their SA citizenship in terms of section 6(1)(a) of the act on or after 6 October 1995 are South African citizens; and
- Declaring that all persons who had lost their citizenship in terms of the above may apply to the first respondent (Minister) in terms of S15 of the act for the appropriate certificate of citizenship.
The high court dismissed the application with no order as to costs and dismissed the DA’s application for leave to appeal, which was then taken to the SCA.
The party had brought the application on behalf of South African citizens who had lost their citizenship through the operation of section 6(1)(a), relying on the evidence of Phillip James Plaatjes, a South African living in the United Kingdom who married a Briton on 27 February 2004.
On 19 November 2007, Plaatjes became a naturalised citizen. It was only in July 2014 that he discovered, after reading a newspaper article, he had probably lost his SA citizenship. Between 2007 and 2014, he travelled numerous times using his SA passport without any queries from SA immigration officials.
It was only on 20 July 2015, when he went to the SA embassy in London to renew his passport, that he was told he had automatically lost his SA citizenship by acquiring British citizenship, at which point the embassy officials cancelled his SA passport.
Plaatjes said that he never wanted to leave SA permanently, nor relinquish his SA citizenship.
The DA alleged Plaatjies is one of many South African citizens living abroad who have acquired a second citizenship in good faith, but lost their SA citizenship by virtue of s 6(1)(a) of the act.
The respondents opposed the application, denying that S6(1)(a) is unconstitutional and contending that the loss of citizenship occurs as a result of a voluntary act on the part of the citizen, not the state.
The Constitution protects citizenship, expressly providing in S20 that “no citizen may be deprived of citizenship”.
Judge Dumisani Hamilton Zondi, the scribe of the ruling, referenced the Constitutional Court as providing the historical context within which the protection of the citizenship must be understood, saying that citizenship in SA has a controversial history because many black Africans were denied their citizenship through unfair and discriminatory colonial and apartheid laws.
“Citizenship and equality of citizenship is, therefore, a matter of considerable importance in South Africa, particularly bearing in mind the abhorrent history of citizenship deprivation suffered by many in South Africa over the last hundred and more years.
“Citizenship is not just a legal status. It goes to the core of a person’s identity, their sense of belonging in a community and, where xenophobia is a lived reality, to their security of person. Deprivation of, or interference with, a person’s citizenship status affects their private and family life, their choices as to where they can call home, start jobs, enroll in schools and form part of a community, as well as their ability to fully participate in the political sphere and exercise freedom of movement.”
The South African Citizenship Act, which came into effect on 6 October 1995, sets out “to provide for the acquisition, loss and resumption of South African citizenship”. Chapter 2 stipulates how SA citizenship can be acquired – by birth, descent, naturalisation or through the Minister granting a certificate of naturalisation to a foreigner who meets certain requirements.
Counsel for the respondents, the judge wrote, were unable to point to a legitimate government purpose which s 6(1)(a) seeks to achieve, by the cessation of citizenship, when a citizen formally acquires the citizenship of another country, save for a “generalised submission” that its purpose is to regulate the acquisition and loss of SA citizenship.
“That is not to state a legitimate purpose… the answering affidavit discloses no legitimate government purpose. It merely states that the citizen makes a conscious decision, accompanied by a formal act, to accept foreign citizenship”.
Moreover, in relying on S6(2), counsel for the respondents merely underscores the arbitrariness and irrationality of the legislation.
“And it cannot be a legitimate object to threaten the deprivation of citizenship so as to invest the Minister with power to avoid that consequence. If that were so, every arbitrary deprivation would be transformed into the legitimate exercise of power simply because the Minister is given an untrammeled discretion to avoid that outcome.
“In sum, to deprive a citizen of their rights of citizenship for no reason is irrational. That irrationality is not cured because a power is conferred on the Minister to exercise a discretion to decide whether that deprivation should take place.”
Moreover, S 7(1) and S 8(2) expressly recognise dual citizenship and nationality of another country: S7(1) permits a SA citizen “who intends to accept the citizenship or nationality of another country, or who also has the citizenship or nationality of a country other than the Republic”, to renounce his or her SA citizenship; S8(2) provides that the Minister may by order deprive a South African citizen who also has citizenship or nationality of another country, if such citizen has been sentenced to a certain period of imprisonment, or if it is in the public interest to do so.”
These provisions, therefore, make it clear that Parliament has sanctioned the holding of dual citizenship, and that S 6(1)(a) cannot be based on a proposition that dual citizenship is inherently undesirable.
He said the act simply fails to provide a coherent basis as to how dual citizenship may be recognised as permissible and unobjectionable, but also warrants the drastic consequence of the loss of South African citizenship in terms of s 6(1), save for the exercise of ministerial discretion.
“The statutory scheme is indefensible and the impugned provision is irrational.”
S 6(1)(a) of the act is therefore irrational and inconsistent with the Constitution, unjustifiably limits political rights, the right to enter and remain in the Republic, and the right to freedom of trade, occupation and profession, guaranteed by the Constitution.
The court has declared that s 6(1)(a) of the South African Citizenship Act 88 of 1995 is inconsistent with the Constitution and is invalid; that citizens who lost their citizenship by operation of this section of the act are deemed not to have lost their citizenship; and that the respondents pay the applicant’s costs, including the costs of two counsel. DM