Chisuse and Others v Director-General, Department of Home Affairs and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
• Judgment Date: 22 July 2020
• Court: Constitutional Court
• Hearing Date: 22 July 2020
• Counsel: I Goodman (with J Mitchell) for the applicants. S Mangolele SC (with S Masina, F Khunou and L Mboweni) for the respondents.
• Docket Number: 155/19 [2020] ZACC 20

Khampepe J (Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring):

Introduction

[1] Citizenship in South Africa has, since its inception in the early twentieth century, been a deeply fraught political, social and ideological tool used to define access to membership of the South African polity. The systematic act of stripping millions of black South Africans of their citizenship was one of the most pernicious policies of the apartheid regime, which left many as 'foreigners in the land of [their] birth'. [1] The advent of the constitutional dispensation established South African citizenship as a constitutional precept based on equality. [2]

Khampepe J (Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

[2] This matter comes before this court in confirmation proceedings in terms of s 167(5) of the Constitution. The question in this matter is whether this court should confirm the declaration of the High Court of South Africa, Gauteng Division, Pretoria (High Court), that s 2(1) of the amended South African Citizenship Act [3] is constitutionally invalid. The High Court's order declared s 2(1)(a) and (b) of the amended Citizenship Act unconstitutional and invalid. The order included a remedy of reading-in two additions to s 2(1) of the amended Citizenship Act. These additions are italicised below:

'(1) Any person —

(a)

who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010 [ie 1 January 2013], was a South African citizen by birth or by descent; or

(b)

who is born or was born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen,

shall be a South African citizen by birth.' [Emphasis added.]

[3] The phrases read into the section above seek to address two alleged constitutional infringements. The first is that the legislation in question automatically deprives those persons who were citizens 'by descent' under s 3 of the pre-amendment South African Citizenship Act [4] (1995 Citizenship Act) of citizenship. That section stated:

'(1) Any person —

(a)

who, immediately prior to the date of commencement of this Act, was a South African citizen by descent; or

(b)

who is born outside the Republic on or after the date of commencement of this Act, and —

(i)

one of whose parents was, at the time of his or her birth, a South African citizen and whose birth is registered in terms of the provisions of s 13 of the Births and Deaths Registration Act, 51 of 1992 (Births and Deaths Registration Act); or

. . .

shall . . . be a South African citizen by descent.'

[4] In addition, s 13 of the Births and Deaths Registration Act [5] provides that —

'(i)f a child of a father or a mother who is a South African citizen is born outside the Republic, notice of birth may be given to the head of a South African diplomatic or consular mission, or a regional representative in the Republic'.

[5] By not including a provision which retains the citizenship of those who acquired citizenship by descent in terms of previous legislation, the applicants contend that s 2(1) of the amended Citizenship Act has the effect of stripping those individuals of their South African citizenship.

[6] The second alleged constitutional infringement is that the amended legislation deprives of citizenship those persons who, according to the

Khampepe J (Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

applicants, had a 'vested right to citizenship by descent'. These persons fulfilled the requirements set out in s 3 of the 1995 Citizenship Act, but — for reasons out of their control — they could not register their birth to a South African parent in terms of the relevant legislation. [6] The first and third to fifth applicants in this matter fall within this category. [7]

Parties

[7] The first applicant is Yamikani Vusi Chisuse. He was born on 9 October 1989 in Lilongwe, Malawi. The second applicant is Elizabeth Mafusi Nthunya. She was born in Lesotho on 21 September 1982. The third applicant is Martin Ambrose Hoffman. He was born on 8 March 1970 in Bulawayo, Zimbabwe. The fourth applicant is Heinrich Dullaart, acting in his capacity as legal guardian of Emma Angelique Dullaart, his granddaughter, on whose behalf he is part of these proceedings. Emma was born on 25 December 2006 in Accra, Ghana. The fifth applicant is Amanda Tilma. She was born in Bulawayo, Zimbabwe, on 26 February 1969. The applicants each provided evidence before the High Court that one of their parents was a South African citizen at the time of their birth. The High Court accepted the applicants' submissions in this regard, with the exception of those of the second applicant.

[8] The first respondent is the Director-General of the Department of Home Affairs, the functionary responsible for registering births, entering people into the population register and assigning identity numbers. The second respondent is the Minister of Home Affairs, the member of the Executive responsible for the administration of the relevant statutes in these proceedings.

Litigation history

[9] The applicants filed an application before the High Court in October 2016. In their application, the applicants requested that an order be made to the effect that, amongst other things —

(a)

s 2(1)(a) of the amended Citizenship Act be declared unconstitutional and invalid to the extent that it fails to recognise citizenship acquired by descent prior to the date of commencement of the South African Citizenship Amendment Act 17 of 2010 (2010 Amendment), 1 January 2013, and that the defect be remedied by reading the words 'or by descent' into s 2(1)(a);

(b)

s 2(1)(b) of the amended Citizenship Act be declared unconstitutional and invalid to the extent that it only applies prospectively to

Khampepe J (Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

persons born after 1 January 2013 and that the defect be remedied by reading the words 'or was' into s 2(1)(b);

(c)

the applicants be declared South African citizens; and

(d)

the first respondent be directed to register the births of the applicants, to enter their details into the population register, to assign them South African identity numbers, and to cause birth certificates to be issued to them.

[10] The respondents failed to file an answering affidavit in the High Court. When the matter went before the High Court on 9 May 2017, the High Court postponed the application sine die [8] and ordered the respondents to serve and file an answering affidavit within 20 days from the issuance of the order. The respondents again failed to submit the affidavit required by the High Court's order.

[11] Two years later, the application was finally set down on the unopposed motion roll by the applicants' attorneys and heard on 22 May 2019.

[12] On the day of the hearing, the respondents appeared and requested a further postponement to allow them to file an affidavit. This request was made without an application for postponement or condonation being filed. After considering this court's case law, [9] the High Court reasoned that the respondents had not provided any reasonable grounds for their delay and that a further postponement would not be in the interests of justice. [10] The application was, therefore, heard unopposed.

[13] The High Court accepted the applicants' submissions in relation to the constitutional invalidity of s 2(1)(a) and (b). The High Court also accepted the factual circumstances and evidence entitling all the applicants, bar the second applicant, to the consequential relief they sought. In relation to the second applicant, the High Court found that insufficient details had been provided for her to be granted consequential relief, and her matter was postponed sine die.

[14] In the event, the High Court declared s 2(1)(a) and (b) of the amended Citizenship Act constitutionally invalid. It further granted the consequential relief sought by the applicants, with the exception of the second applicant, declaring them citizens and directing the Director-General of the Department of Home Affairs to register their births, enter

Khampepe J (Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

their details into the population register, assign them South African identity numbers and issue them South African identity documents and/or identity cards as well as birth certificates.

Condonation

[15] As a preliminary step, it is necessary to decide the issue of condonation. The respondents attempted to bring evidence in this court disputing the factual claims made by the applicants and confirmed by the High Court. In particular, the respondents requested condonation to file this factual material before us. It is my view that this request is procedurally defective. It is not clear who the respondents sought condonation from. Their non-compliance was with the High Court's procedure and the High Court is functus. [11] Properly construed, the respondents are, in effect, merely attempting to raise factual evidence in these proceedings for the first time.

[16] The respondents then attempted to rely on Corruption Watch [12] to support their contention that they could submit an affidavit which should have been provided in the High Court. Their reliance on that case, however, is wholly misplaced. In Corruption Watch the respondent sought condonation for the late filing of the affidavit in the High Court and averred that the High Court had improperly exercised its discretion in not granting condonation in that court. [13] The respondents' conduct in this case is clearly distinguishable. In this matter...