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Mail & Guardian
07-05-2025
- Politics
- Mail & Guardian
Concourt delivers relief for South Africans with dual citizenship
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.'
Daily Maverick
07-05-2025
- Politics
- Daily Maverick
South African citizenship law is unconstitutional, apex court rules
The South African Citizenship Act stripped citizenship from South Africans who took another country's citizenship. Now the Constitutional Court has confirmed a Supreme Court ruling that found a section of the Act to be arbitrary and irrational. The Constitutional Court has confirmed the unconstitutionality of a law which automatically stripped South Africans of citizenship if they took citizenship of another country. The court, in a unanimous decision, has struck down the relevant section of the South African Citizenship Act, declaring it invalid from its promulgation in October 1995. The court also declared that affected people are now deemed not to have lost their citizenship. The respondents, the minister and director-general of home affairs, were ordered to pay the costs of the application. The matter was initially brought to court by the DA. The party lost its initial challenge in the Pretoria High Court, which ruled that the section was not irrational and did not infringe on constitutional rights, but won in the Supreme Court of Appeal (SCA). The matter came before the Constitutional Court for confirmation of the SCA unconstitutionality ruling. The minister and the director-general agreed to abide by the decision of the court. Justice Steven Majiedt, writing for the Constitutional Court, said the application was supported by Phillip Plaatjes, a chartered accountant born in Cape Town who lost his South African citizenship because of the provisions of the Act. Read the judgment. He left South Africa to teach English in South Korea in November 2002. He never intended his departure to be permanent. But while overseas he met a British citizen who he later married. The couple lived in the UK. He was naturalised, through marriage, as a citizen of the UK in 2007. He believed he would then have 'dual citizenship', but seven years later, when he went to renew his expired South African passport at the South African embassy in London, he found out he had lost his South African citizenship. Justice Majiedt said Plaatjes received his passport back, cut at the corners with the words 'cancelled' stamped across the pages, as well as a letter stating that he had committed a voluntary act which resulted in the automatic loss of his citizenship. However, he remained a permanent resident. 'He says this was one of the saddest days in his life as he was desirous of retaining his South African citizenship,' Justice Majiedt said. He said the DA said it had brought the court application in defence of many South Africans living abroad 'who had acquired a second citizenship in good faith'. The party said this automatic loss of citizenship occurred without their knowledge. The DA had contended that this was a violation of the right to citizenship without justifiable reasons. The respondents initially opposed the application in the Pretoria High Court and in the SCA. They argued that the section affected those who had 'voluntarily' given up their citizenship and that those people could make an application to the minister for permission to hold dual citizenship. After the high court dismissed the application, the SCA ruled that the section of the Act was arbitrary and irrational. It held that there was no reason that individuals who applied for citizenship of another country must, by operation of law, lose their South African citizenship. The SCA also held that this treated South Africans who already had dual citizenship differently from those who intend to acquire citizenship of another country. And, the SCA found, the section of the Act unjustifiably limited political rights, the right to enter and remain in South Africa, and the rights to freedom of trade, occupation and profession. Justice Majiedt said the right to citizenship was 'cherished' and should not be lightly removed. 'Loss of citizenship has severe consequences. It entails being deemed to be a foreigner. 'Where the law automatically terminates citizenship without any forewarning and even knowledge, simply on account of dual citizenship, that is plainly a deprivation of citizenship.' He said all laws were subject to the Constitution and the respondents had failed to advance any legitimate purpose for the section. He said the section also did not provide any criteria for how the minister's discretion was to be exercised. 'The minister is simply given unconstrained free rein to determine in (her) untrammelled discretion whether to permit dual citizenship.' Justice Majiedt said the SCA's reasoning could not be faulted and the plight of Plaatjies 'vividly demonstrated' the irrationality of the section of the Act and that it was a constitutional aberration. He said the Act had come into effect in October 1995, under the interim Constitution, and had remained in place under the current Constitution. It was invalid under both, so the declaration of invalidity must take effect from October 1995. DM
