Supreme Court of Appeal of South Africa: The Five Judges Bench comprising of Zondi*, Schippers, Matojane, Kathreeesetiloane and Unterhalter, JJ., unanimously struck down Section 6(1)(a) of the South African Citizenship Act, 1995 (‘Act’) as arbitrary and interfering with the constitutional rights; and emphasised on the importance of protecting right to citizenship to prevent negative impacts on citizens’ quality of life.
The case is concerned with the constitutionality of the Section 6(1)(a) of the Act which provides that adult citizens will ‘automatically’ loose their South African citizenship if they voluntarily take up citizenship of another country without first obtaining ministerial permission to retain the citizenship. The petitioner contended that the provision is irrational and arbitrary and infringes constitutional rights. The Respondents submitted that the provision was enacted to serve a legitimate government purpose which is to regulate the acquisition and loss of citizenship and the Constitution allows Parliament to enact such provisions.
Decision of the High Court
Accepting the Respondent’s argument, the High Court held that the provision deals with voluntary act of acquiring citizenship of another country without availing the right to ministerial application. Further, it noted that Section 6(1)(a) was enacted to serve legitimate government purpose of acquisitions and loss of citizenship and it carefully balances the choice of individuals with the interest of State and public purpose.
The Court also held, that the provision falls under Section 3(3) of the Constitution which provides for the parliament to enact legislation for acquisition and loss of citizenship and does lead to any interference with the Constitutional rights.
Issues for consideration
There were two issues for consideration before the court. First, whether Section 6(1)(a) of the Act is inconsistent with the Constitution and second, whether the impugned Section infringes any right in the Bill of Rights.
Decision by the Supreme Court of Appeal
The Supreme Court of Appeal held, that the High Court was unable to provide explanation as to why State can automatically strip citizenship merely because they acquired the citizenship of another country. This is more so when the Parliament does not have any hostile policy towards dual citizenship. Further, it rejected the High Court’s reasoning that the provision servers legitimate government function. It opined that ‘regulation of acquisition and loss of citizenship’ is the general function of the Act, and does not serves as a legitimate purpose the government sought to achieve by enforcing above restriction on right to citizenship.
Rejecting the respondent’s contentions that the citizens are free to apply to the minister concerned for retention of citizenship, the court held that it amounts to arbitrary discretionary power to the minister and compounds irrationality of the provision.
The Court further noted that the Constitution prevents the denial of citizenship which may arise in any manner other than the renunciation of citizenship under the Act.
Thus, based on above analysis, the Court struck down the Section 6(1)(a) of the Act as unconstitutional. Further, it declared that the citizens who lost their citizenship due to the operation of provision are deemed not to have lost their citizenship.
[Democratic Alliance v. Minister of Home Affairs, (67/2022) [2023] ZASCA 97 (13 June 2023), order dated 13-06-2023]
*Judgement authored by: Justice DH Zondi
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