The Supreme Court of Appeal (SCA) was recently called to determine the constitutionality of Section 6(1)(a) of the South African Citizenship Act 88 of 1995 (the Act) which provides that a South African citizen shall cease to be a South African citizen if he voluntarily acquired citizenship of another country (except through marriage) without first applying for and obtaining ministerial permission to retain his citizenship.  

Background 

The Democratic Alliance (the DA) brought an application to the High Court (Gauteng Division) on behalf of South African citizens who, to their surprise, discovered that they had lost their South African citizenship through the operation of Section 6(1)(a) of the Act. 

In support of their application, the DA relied on the evidence of a Mr Phillip Plaatjes, a South African citizen living in the United Kingdom. Mr Plaatjes had become a naturalized citizen of the UK in 2007. In 2015, he was informed by the South African Embassy in London that he had automatically lost his South African citizenship when he acquired British citizenship. He objected to the fact that his South African citizenship had been revoked in that it was never his intention to leave South Africa permanently nor was it his intention to relinquish his South African citizenship. 

In an application to the High Court, the DA alleged that Mr Plaatjes was one of many South Africans living abroad who had acquired a second citizenship in good faith but had lost their South African citizenship by virtue of the operation of Section 6(1)(a) of the Act. 

In the High Court proceedings, the DA advanced the argument that Section 6(1)(a) of the Act violated the principle of legality due to its irrationality and, furthermore, that the application of the Act unjustifiably infringed upon certain constitutional rights afforded to South African citizens in the South African Constitution. The High Court rejected the DA’s contentions and the DA’s application was dismissed.   

On appeal to the SCA, the Court was called upon to determine two issues:   

1. Whether Section 6(1)(a) of the Act was irrational and whether it was inconsistent with the Constitution.  

2. Did Section 6(1)(a) of the Act infringe upon any right guaranteed to SA citizens in the Bill of Rights and, if so, whether such infringement was justifiable under Section 36 of the Constitution?  

Was Section 6(1)(a) arbitrary and irrational?   

The SCA held that the provisions of Section 6(1)(a) of the Act were arbitrary and irrational because it treated differently South African citizens who already held dual citizenship from those South African citizens who intended to acquire citizenship or nationality of another country. 

The SCA noted that:

• the Constitution afforded all citizens equal rights, privileges and benefits of citizenship. It further noted that the Constitution protected citizenship and expressly provided that no citizen may be deprived of SA citizenship.    
• the Citizenship Act did recognise dual citizenship for SA citizens and that the Act recognised that SA citizens who held dual citizenship did not lose their connection with South Africa. The SCA furthermore noted that the Act did allow SA citizens who held dual citizenship to run for public office, and 
• the power of Section 6(1)(a) of the Act to deprive a South African of his citizenship (and subject to the exercise of ministerial discretion) rendered these provisions of the Act indefensible and irrational.   

The SCA accordingly held that the provisions of Section 6(1)(a) of the Act were irrational and indefensible.   

Did Section 6(1)(a) infringe on any rights which were guaranteed to South African citizens in the Bill of Rights? 

The SCA noted that Section 20 of the Constitution stipulated that no citizen could be deprived of SA citizenship.   

The purpose of Section 20 was, amongst other things, to prevent the denial of citizenship to South African citizens in circumstances where the citizen was rendered stateless. 

South African citizenship is a gateway to political rights guaranteed under Section 19 of the Constitution as well as Freedom of Movement as guaranteed under Section 21 of the Constitution as well as the Freedom of Trade, Occupation and Profession guaranteed under Section 22 of the Constitution. Therefore, when a citizen loses citizenship through the mechanism of Section 6(1)(a) of the Act, they faced the risk of being denied the constitutional guarantees under the constitution. 

The SCA affirmed that the existence of those rights could not depend on the exercise of a wide and unconstrained discretion by a Minister in deciding whether to allow or refuse a citizen to retain his South African citizenship. 

In the circumstances, the SCA 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. It also declared that those South African citizens who had lost their South African citizenship by operation of Section 6(1)(a) of the South African Citizenship Act 88 of 1995, were deemed not to have lost their citizenship and that in these circumstances citizenship would immediately be retrospectively restored to those affected.