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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
Eyewitness News
07-05-2025
- Politics
- Eyewitness News
Home Affairs tasked with ensuring SAns who lost citizenship due to Citizenship Act
JOHANNESBURG – The Home Affairs Department is now tasked with ensuring the reinstatement of South Africans who lost their citizenship due to the implementation of the Citizenship Act. The Constitutional Court last Thursday confirmed an order of constitutional invalidity declared by the Supreme Court of Appeal, giving effect to the declaration. The provision stipulates that major South Africans who voluntarily acquire the citizenship of another country, outside of marriage, cease to be South Africans in accordance with the act. The apex court ordered that all South Africans who lost their citizenship as a result of this provision are deemed not to have lost it. The order of the constitutional court has a retrospective effect, meaning that it is intended to have a backdated consequence, affecting events that preceded it. In this matter, all citizens who previously lost their citizenship will be deemed not to have lost it. The constitutional court found that there was no rational reason why a South African would automatically lose their citizenship by acquiring the citizenship of another country. Although Section 6 subsection 2 allows persons who may lose their citizenship as a result of the operation of the act to apply to the Minister of Home Affairs to retain their South African status, the court finds that this does not save the provision from unconstitutionality. Justice Steven Majiedt, 'The existence of a ministerial power to exercise discretion in terms of Section 6(2) to alter what is otherwise an automatic loss of citizenship is no answer to the question of why citizenship must be lost in the first place. 'The court further notes that section 6(2) of the act provides no criteria at all on how the minister's discretion is to be exercised and what it's bounds are. The legislature argues that dual citizenship is permissible, subject only to ministerial discretion. This reasoning is unclear and utterly irrational.' The apex court also finds that the provision gives the minister broad, unchecked power, which cannot be defended given the violation of fundamental rights.
Daily Maverick
06-05-2025
- Politics
- Daily Maverick
Constitutional Court strikes down part of South African Citizenship Act
Law which stripped citizenship from South Africans who took another country's citizenship is unconstitutional, ConCourt rules. A law which automatically stripped South Africans of citizenship if they took citizenship of another country is unconstitutional, the Constitutional Court has ruled. The court struck down part of the South African Citizenship Act. Those affected are now deemed not to have lost their citizenship. 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 Democratic Alliance. 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 DG 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. 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 United Kingdom. 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 why 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.
The Citizen
06-05-2025
- Politics
- The Citizen
ConCourt strikes down Citizenship Act clause, restores citizenship for affected South Africans
The ConCourt rejected the idea that dual citizenship poses a conflict of loyalty. The Constitutional Court (ConCourt) has ruled that a section of the Citizenship Act is unlawful as it violates the rights of people who lost their South African citizenship after becoming citizens of another country. On Tuesday, the ConCourt delivered its judgment regarding an application brought by the Democratic Alliance (DA). The DA challenged Section 6(1)(a) of the Citizenship Act, which states that South Africans automatically forfeit their citizenship if they voluntarily and formally acquire citizenship of another country. According to Section 6(2) of the Act, individuals must apply to the Minister of Home Affairs to retain their South African citizenship before obtaining foreign citizenship. ConCourt judgment on Citizenship Act Reading out the judgment, Judge Steven Majiedt found that Section 6(2) could not save the contested provision from being invalid. While Majiedt pointed out that international law does not specifically regulate dual citizenship, he said countries have the right to set their own rules. 'In a world of increasing globalisation and transnational mobility, permitting dual citizenship is the norm rather than the exception,' the judge said. He also highlighted that many countries allow dual citizenship and that several constitutions only permit loss of citizenship through voluntary renunciation. ALSO READ: Cape Independence leader blames Home Affairs for his citizenship problems This meant citizenship should not be lost simply by acquiring another nationality. The judge also rejected the idea that dual citizenship poses a conflict of loyalty. 'In sum, the court holds that the impugn provision is unconstitutional as it infringes the right to citizenship, entrenched in Section 20 of the Constitution, and, consequentially, other constitutional rights, namely political rights, the right to enter and remain in South Africa, and the right to freedom of trade, occupation and profession. 'The impugned provision must, therefore, be struck down,' he ruled. ConCourt supports SCA's Citizenship Act ruling Majiedt also backed the Supreme Court of Appeal (SCA), which earlier ruled that Section 6(1)(a) be struck down with immediate effect, applying from the date the law was introduced. 'The Act came into effect on 6 October 1995 when the interim constitution was still in force. 'The impugn provision is unconstitutional in terms of the constitution, but the same is true in respect of the interim constitution. 'The declaration of invalidity should, therefore, take effect from the date of the Act's promulgation on 6 October 1995.' He agreed that the ruling should take effect without delay. READ MORE: Home Affairs deports more than 46 000 illegal immigrants in past year 'There is no need for a suspension order, and the [Home Affairs] department accepted throughout this litigation that in the event of a striking down of the impugn section, such suspension would be unnecessary.' Majiedt, therefore, concluded that anyone who lost their South African citizenship under Section 6(1)(a) is now considered not to have lost it at all. The court also ruled that the DA is entitled to its costs, including those of two legal counsel. These legal fees must be paid by the Minister and Director-General of Home Affairs, who were the respondents in the case. Both officials have indicated that they will abide by the ConCourt's decision. Background The case began when Philip James Plaatjies lost his South African citizenship in 2007 after becoming a naturalised British citizen. He had acquired UK citizenship three years after marrying a British woman. The DA then launched legal action, but the Gauteng High Court in Pretoria initially dismissed its case in 2018. However, in 2023, the DA succeeded on appeal in the SCA. The DA has since welcomed the ConCourt's judgment. NOW READ: Only South Africans receive birth certificates, says home affairs
Eyewitness News
06-05-2025
- Politics
- Eyewitness News
ConCourt confirms declaration of constitutional invalidity for parts of Citizenship Act
The Democratic Alliance (DA) approached the apex court for confirmation following an order of the Supreme Court of Appeal (SCA) that declared the section unconstitutional and invalid. The party argued that it served no legitimate public purpose and was therefore irrational. The court unanimously agreed with the Government of National Unity (GNU) partner. Justice Steven Majiedt handed down the judgment: "One: the order of constitutional invalidity of the Supreme Court of Appeal is confirmed. Two: it is declared that Section 6(1)(A) of the South African Citizenship Act 88 of 1995 is inconsistent with the Constitution and is invalid from its promulgation on 6 October 1995. Three: it is further declared that those citizens who lost their citizenship by operation of Section 6(1)(A) of the South African Citizenship Act 88 of 1995 are deemed not to have lost their citizenship."
