This article was first published by Business Day on 14 October 2024
On 13 June, 2023 the Supreme Court of Appeal unanimously ordered that:
(a) Section 6(1)(a) of the South African Citizenship Act 88 of 1995 is inconsistent with the Constitution and is invalid from the date of its promulgation on 6 October 1995.
(b) Those citizens who lost their citizenship by operation of s 6(1)(a) of the South African Citizenship Act 88 of 1995 are deemed not to have lost their citizenship.
An article by lawyer Gary Moore published by Politicsweb on 26 January, 2023 alerted the country to the fact that thousands of South Africans were being peremptorily stripped of their citizenship, most without knowing it, merely because they had accepted citizenship of a second country. Moore’s article however, did not complete the horrendous picture:
In March 2023 the Supreme Court of Appeal (SCA) heard an appeal regarding the constitutionality of sections 6 (1) and 8 (2) of the Citizenship Act under which South Africans had been routinely deprived of their rights, and not just their citizenship rights. The loss of citizenship means the simultaneous loss of almost every other constitutional right. For example, the right to reside in South Africa and the right to work in the country, the right to choose one’s occupation, the right to vote, the right to be elected to public office, etc, etc, are all denied persons who are deprived of their citizenship.
It seems that the opposition had been asleep at the wheel when this Act was passed in 1995. Even the Minister of Home Affairs at the time Prince Mangosuthu Buthelezi resigned, in part because of this legislation.
The South African Constitution was specifically designed to prevent repugnant laws of this nature. Indeed, the entirety of Section 20 of the Constitution consists of a single sentence: “No citizen may be deprived of citizenship.” There are precisely no qualifications to this imperative. This has been confirmed by the SCA and now awaits ratification by the Constitutional Court, where it is unduly delayed it seems, for administrative reasons.
Our country is founded upon the supremacy of the Constitution and “the rule of law”. The rule of law is an old and complex concept with a long history but may for simplicity be described as the opposite of “the rule of man”. When government officials are given discretion to subjectively decide when, if, and how a law is to be applied, we have descended into “the rule of man”.
Laws that permit a government official to decide, for example, what is in “the public interest” are anathema to the rule of law. What Hendrik Verwoerd thought was in the public interest and what Nelson Mandela thought was in the public interest were clearly two entirely different things. For that reason, laws that meet constitutional muster do not grant wide discretion to the responsible officials. On the contrary, they give very specific, narrowly defined guidance so that little or no personal discretion can be exercised, ensuring that rule is always by the law and not by the whim or caprice of an individual.
In the most egregious affront to the rule of law, Section 6 (1) of the Citizenship Act states that citizens wishing to obtain a second passport must first apply to the Minister to retain their South African citizenship and empowers the minister in his or her sole discretion “if he or she deems it fit” to grant such retention. Moreover, Section 8 (2) (b) states that the Minister “may by order deprive” a South African citizen of his or her citizenship if the Minister believes that it is “in the public interest” to do so.
The Pretoria high court judge who heard this case, Judge Narandra Jody Kollapen (now a Constitutional Court judge), not only upheld this law but denied the applicants the right to appeal the judgement.
Moore pointed out the elementary flaws in the judge’s reasoning, as did the subsequent SCA finding.
The applicants in this case were forced to endure further costs and delays by having to apply to the SCA for leave to appeal judge Kollapen’s finding. That consent was of course, granted and the matter argued with judgement duly delivered in June 2023.
Application was made to the Constitutional Court for ratification in June 2023. No hearing date has yet been forthcoming. However, one trusts that it is imminent. When it is due to be heard, no doubt judge Kollapen will recuse himself.
The University of Lucerne has recently published extensive research findings that show a majority of the world’s countries today permit and sometimes even encourage dual citizenship. Researchers have found that persons who make use of such facilities often introduce greater skills, expertise, knowledge, opportunities and wealth to the country. Australia is one such country, notwithstanding the fact that their constitution, unlike ours, does not stipulate that persons may not be deprived of citizenship. Other such countries include Germany, Poland, Portugal, Greece, Mauritius, Congo, Italy, Kenya, Nigeria, and Namibia.
After nearly three decades, South Africans can at last look forward to this unfortunate piece of legislation finally being expunged from the statute books.
