Concourt delivers relief for South Africans with dual citizenship

Mail & Guardian

07-05-2025

The constitutional court has upheld an appeal court ruling which struck down a provision of the Citizenship Act in terms of which South Africans were stripped of their nationality when they acquired citizenship of another country.
The constitutional court has upheld an
In a unanimous ruling penned by Justice Steven Majiedt, the apex court held that section 6(1)(a) of the act was irrational.
All those who have lost their citizenship as a result of the provision in the Act, from its promulgation in October 1995, will be 'deemed not to have lost their citizenship', the court declared.
In terms of the provision, South African citizens lost their citizenship automatically if they voluntarily acquired citizenship in another country, unless they had prior permission from the minister of home affairs.
Majiedt said the irrationality of the provision was amply demonstrated by the plight of Phillip Plaatjes. It was recounted in an affidavit attached to the pleadings of the Democratic Alliance (DA), who brought the constitutional challenge.
Plaatjes, a Cape Town-born accountant, married a British woman in 2004 and settled in the UK, where he obtained a work visa. He became a naturalised British citizen in 2007. He had renewed his South African passport in London two years earlier.
When it was due to expire in 2015, he went to the South African embassy and asked for a determination of his nationality, because he had learnt from a media article that South African citizens stood to lose their citizenship when they voluntarily acquired citizenship of another country.
His passport was returned to him with the corners cut off, and the word 'cancelled' stamped across the pages, along with a letter stating that he had committed a voluntary act resulting in the automatic loss of his South African citizenship.
Plaatjes would from then on hold only permanent residency.
The DA said it brought the application in the interest of all those who had suffered this fate, without their knowledge and perhaps even without the knowledge of the department of home affairs.
The ministry of home affairs countered that the loss of citizenship flowed from a voluntary act on the part of the citizen, not the state, and that section 6(2) of the same act enabled a South African citizen to retain citizenship on application to the minister.
It also contended that the state had a right to regulate the process by which citizenship is acquired and lost, including that of dual citizenship.
The high court dismissed the application but the supreme court of appeal held that there was no reason why a citizen who applied for citizenship of another country must, by operation of law, lose their South African citizenship.
It said that the rationality of a provision is weighed in terms of substantively legitimate objects, 'not by saying that, because the power may be one that the state could exercise legitimately, its existence makes its exercise legitimate'.
Nor did the provision make sense when read alongside section 8(2), which expressly recognises dual citizenship and nationality of another country, because it allows the minister to strip a South African of such under certain conditions, for example if they have been sentenced to prison for more than a year.
Crucially, the supreme court of appeal held that the provision put an unjustifiable limit on political rights, the right to enter and remain in the country, plus the right to freedom of trade, occupation and profession. It therefore declared the section unconstitutional.
In concurring, the constitutional court stressed that citizenship is a precious right, guaranteeing a host of other rights enshrined in sections 19, 21 and 22 of the Constitution, of which a person should not be deprived lightly.
'The stark reality of the impugned provision is that the loss of citizenship occurs automatically without the knowledge, consent and any input of the citizen concerned,' Majiedt said.
The right to citizenship is enshrined in section 20 of the Constitution, which is part of the Bill of Rights. Case law, Majiedt noted, has recognised the importance of citizenship in the context of the 'maleficent historical deprivation of citizenship' during apartheid.
Because of the importance of the right to citizenship, any deprivation must be justified in terms of section 36(1) of the Constitution.
The apex court said it was worth emphasising that the limitation of the right to citizenship in section 6 of the act served no legitimate government purpose.
'The rationale behind this legislation remains unexplained,' it said.
'That legislative scheme not only flies in the face of the respondents' avowed lack of aversion to dual citizenship but also bears no discernible legitimate purpose.'
This was fatal, because legislation must be rationally related to a legitimate government purpose. If it did not, it is invalid.
'The test imposes a relatively minimal requirement: an identification of a legitimate government purpose and a link between the adopted means and that purpose. In the case of the impugned provision there is no such link,' Majiedt said.
Turning to the ministry's defence that section 6(2) served to regulate the loss of citizenship, which would otherwise be automatic, he said it was 'no defence at all' because there was no reason to begin with why those who become naturalised citizens of another country should be deprived of their South African citizenship.
'The antecedent question is why citizenship must be lost in the first place … there is no reason at all.
'The existence of a ministerial power to exercise a discretion in terms of section 6(2) to alter what is otherwise an automatic loss of citizenship is no answer to the antecedent question.'
Lawmakers had made no attempt to answer this, on the contrary, the act made plain that dual nationality is permissible, but decided that it should be subject to an undefined ministerial discretion.
The court stressed that the act set no criteria for how this should be exercised.
'The minister is simply given unconstrained free rein by the section to determine in her untrammelled discretion whether to permit dual citizenship,' it said.
'This is untenable, given the infringement of citizenship as a fundamental right.'