The Constitutional Court has declared legislation that strips South Africans of their citizenship after acquiring citizenship of another country as unconstitutional.
The DA applied to the apex court for confirmation of orders by the Supreme Court of Appeal (SCA), which declared unlawful the provision of the Citizenship Act that prevents dual citizenship for South Africans.
The contested provision reads: “A South African citizen shall cease to be a South African citizen if he or she, while not being a minor, by some voluntary and formal act, other than marriage, acquires the citizenship or nationality of a country other than the Republic.”
The DA initiated the legal battle against the home affairs minister more than six years ago.
The confirmation ruling took place as Leon Schreiber, who headed the DA’s case as the party’s home affairs spokesperson, is now the minister in a government of national unity.
Schreiber will now have to implement the findings against the department.
The department did not oppose the application at the Constitutional Court, arguing the apex court had the final say on matters of constitutionality. This as the high court in Johannesburg had dismissed the DA’s application.
Justice Jody Kollapen, while at the high court in Johannesburg, dismissed the DA application because he found there was no limitation of rights. He found the loss of citizenship was not the same as the deprivation of citizenship.
Delivering the unanimous judgment, justice Steven Majiedt said the court found no reason the act stripped South Africans of their citizenship.
The court ordered that people who lost their citizenship due to the act are deemed not to have lost their citizenship.
The court did not suspend its order, which means the citizenship of those who lost it is restored and Schreiber needs to ensure that process.
“As I see it, the distinction between the automatic loss of citizenship occasioned by the impugned provision is more apparent than real and more semantic than substantive, a distinction without a difference,” Majiedt said, differing from the high court’s findings.
“Where the law automatically terminates a citizen’s ‘cherished and revered status’ and closes the ‘gateway to a number of rights,’ without any forewarning and even knowledge of the citizen (and possibly even the department itself) simply on account of dual citizenship, it is plainly a deprivation of citizenship.”
The act section gives the minister “unconstrained free rein”, the justices found. Under the section the minister is the only person who can approve a person retain citizenship.
“The minister is given the unconstrained free rein by the section to determine in her untrammelled discretion whether to permit dual citizenship.
“The impugned provision therefore cannot pass constitutional muster.
“The section affords the minister broad, unchecked power without any guidelines as to how the minister’s decisions are to be made.”
DA spokesperson Willie Aucamp described the judgment as a huge victory for South Africans who were unknowingly stripped of their citizenship.
“This has been a culmination of 10 years of legal battles.
“The previous ministers took the case through all ranks of courts just to now finally get surety for people living outside SA and lost citizenship.
“This a huge victory. We are talking about roughly 2-million people who can be affected by this. Two-million people whose citizenship can be, or has been, taken away.”
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.