Citizenship by Naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 Invalid?

• Jurisdiction: South Africa
• Author: Moosa, F.
• Citation: (2021) 32 Stell LR 71
• DOI: https://doi.org/10.47348/SLR/v32/i1a4
• Published date: 21 June 2021
• Pages: 71-92
• Date: 21 June 2021

71

https://doi.org/10.47348/SLR/v32/i1a4

CITIZENSHIP BY NATURALISATION: ARE

REGULATIONS 3(2)(b) AND (c) TO THE SOUTH

AFRICAN CITIZENSHIP ACT 88 OF 1985

INVALID?

Fareed Moosa

BProc (UWC), LLB (UWC), LLM (UCT), LLD (UWC)

Professor and Head of Department: Mercantile and Labour Law,

University of the Western Cape

Abstract

This article argues that regulation 3(2)(b), read with reg ulation 3(2)(c),

issued pursuant to section 23(f ) of th e South African Citizenship Act 88 of

1995 (“1995 Act”), is invalid and ought to be set aside on judicial review. It

is a rgued that they are inconsistent with sections 5(1)(c), (2), (5) and (9)(a)

of the 1995 Act. T his article shows that , whereas regulation 3(2)(b) require s

a foreigner seeking citi zenship to be physically present in So uth Africa and

not be absent from the Republic for more than 90 d ays in each of the ve

years preceding the date of applic ation for citizenship, no such phy sical

presence requirement i s contained in section 5(1)(c), or in sect ion 5 of the

1995 Act in gener al, if read holis tically. Section 5(1)(c) merely requires th at

an aspirant c itizen be ordinarily reside nt in South Africa for ve continuous

years immediately preced ing the lodgement of an application for cit izenship.

In the context of section 5(1)(c), the term “ordina rily resident” is interpreted

as not requiring a physical pres ence in South Africa for any per iod of time

during a calendar year. Rather, it merely re quires that a foreigner must have

sufciently strong ties to South Africa to support a nding that his real home

is there. Therefore, it is h ypothesised that the Minister of Home Af fairs acted

ultra vires the 1995 Act when he issued regulat ions 3(2)(b) and (c).

Keyword s: administrative law; certicate of naturalisat ion; citizenship;

ordinarily resident; resident; regulations; ultra vires

1 Introduction

After the National Par ty government came i nto power in 1948, pernicious

apartheid policies led to the seg regation of black Africans (that is, Coloured s,

Indians and eth nic Africans) with the effect t hat they could not enjoy the

full spectrum of the rights, benets and privileges of citizensh ip.1 Although

the South African Citi zenship Act 44 of 1949 conferred citizensh ip to

1 In Chisuse v Di rector-Gene ral, Departme nt of Home Affairs 2020 6 SA 14 (CC) para 25, th e court held:

“Br oadly, the concept of citizenship is underst ood as the membership of a political communit y in which

those who form pa rt of the commun ity enjoy the rights, a nd assume the dut ies, of that membersh ip”

(2021) 32 Stell LR 71

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https://doi.org/10.47348/SLR/v32/i1a4

black Africans, othe r apartheid laws systematica lly stripped them of basic

protections and political r ights linked to citize nship, such as freedom of

movement and the right to vote. For Blacks, citizenship was both u nequal and

hollow – “an empty ascription”.2

In the 1970s, citizenship wa s an even greate r polarising political, social

and ideological tool used to dene membership of the South African polity.

Under the Black Homeland Citizensh ip Act 26 of 1970, the racist policy

of separate development led to independent homeland s being declared in

Transkei (1976), Bophuthatswana (1977), Venda (1979) and Ciskei (1981), all

of which resulted in millions of eth nic Africans losi ng their South Africa n

citizenship and, a s such, part of their dignity.3 The loss of their South Afr ican

identity, resulted in Blacks becoming “foreigne rs in the land of [t heir] birth”.4

Attempts at re-es tablishing South Afr ican citizenship for these Ba ntustan

citizens failed unde r the Restoration of South Africa n Citizenship Act 73

of 1986. This contributed to the enact ment of the Restoration and Extension

of South African Citi zenship Act 196 of 1993 which aim was “ to erase the

racist indignities of the ap artheid era by bringing all South A fricans under the

auspices of the 1949 Citizenship Act”.5

In 1993, the Interim Constit ution of the Republic of South Africa

directed that a com mon citizenship be est ablished.6 Thus, section 3(1) of the

Constitution of the Republic of South Africa, 1996 (“Constitution”) proclaims

that “[t]here is a common South A frican citizenship.” Sect ion 3(2) records a

national commitme nt to establishing a society in which citizensh ip, including

the promotion of access to citizen ship, is a precept grounded i n equality.7

Consistent with a transformative ethos, section 20 of the Constitution declares

that “[n]o citizen may be deprived of citizenship”.

To promote “full and effective citize nship”,8 t he Constitution confers

some rights exclusively to citizens, such as a suite of political r ights in section

19,9 and the right to re side in South Africa and to h ave a passport.10 These

rights are, in effect, b adges of citizenship.

The Preamble to the Constitution states that “South Africa belongs to

all who live in it, unite d in our diversity”. Consistent with this spirit, the

2 C Hobde n “Repor t on Citizenship Law: South Af rica” (02-2018) CADMUS 3

handle/1814/51447> (accessed 22-09-2020)

3 In Chisuse v Di rector-Gene ral, Departme nt of Home Affairs 2020 6 SA 14 (CC) para 27, the cou rt held:

“The den ial of ful l citizensh ip to the l argely black A frican major ity of the population co nstituted a n

assault on the d ignity and equa lity of many people liv ing in South Afr ica ”

4 J Klaar en “Constitu tional citize nship in Sou th Africa” (2010) 8 Internationa l Journal of Constitu tional

Law 94 95

5 Chisuse v Dire ctor-General , Department of H ome Affairs 2020 6 SA 14 (CC) para 41

6 Kla aren (2010) Inter national Journal of C onstitutional La w 97 states th at “the domi nant post-apar theid

cultura l and legal underst anding is of a common u ndivided citize nship”

7 S 3(2) of the Constitut ion reads:

“All citi zens a re – (a) equally entitled to the r ights, p rivileges and be nefits of citize nship; and (b)

equally subje ct to the duties and re sponsibilities of cit izenship ”

8 August v Electo ral Commission 1999 3 SA 1 (CC) par a 17

9 In Richter v Mini ster of Home Affairs 200 9 3 SA 615 (CC) para s 68, 69 and 92, regulatio ns requir ing

citizens ab road to travel t o South Afr ica to cast thei r vote in an elec tion were declar ed to be an un reasonable

and unjusti fiable limitat ion on the right to vote in a n era of “shared global c itizenship”

10 S 21(3), 21(4) of the Constitution

72 STEL L LR 2021 1

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