Read the full judgment on Saflii

[1]            In Chisuse,[1] this Court observed that “[c]itizenship is the gateway through which a number of rights in the Constitution can be accessed.  It enables a person to enjoy freedom of movement, freedom of trade, and political representation.”[2]  This case concerns a constitutional challenge against section 6(1)(a) (the impugned provision) of the South African Citizenship Act[3] (the Act).  That provision causes South African citizens to lose their citizenship automatically if they voluntarily acquire citizenship in another country, unless they have prior permission from the Minister of Home Affairs.  In relevant part, the impugned provision reads:

“(1)      Subject to the provisions of subsection (2), a South African citizen shall cease to be a South African citizen if—

(a)        [that citizen], whilst not being a minor, by some voluntary and formal act other than marriage, acquires the citizenship or nationality of a country other than the Republic . . .

. . .

(2)      Any person referred to in subsection (1) may, prior to [their] loss of South African citizenship in terms of this section, apply to the Minister to retain [their] South African citizenship, and the Minister may, if [they] deem it fit, order such retention.”

[2]            The Supreme Court of Appeal declared the impugned provision constitutionally invalid from the date of its promulgation on 6 October 1995.[4]  That Court made an ancillary order declaring that those citizens who had lost their citizenship by virtue of that section, are deemed not to have lost their citizenship.  Lastly, it made a costs order against the respondents.  The matter is before this Court for confirmation of the order of constitutional invalidity, in terms of section 167(5), read with section 172(2)(a) of the Constitution, and further read with rule 16 of this Court’s Rules.  Although the respondents abide the decision of this Court, we are obliged to consider the constitutionality of the section to assess whether the declaration of invalidity must be confirmed.[5]