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 citizenship to be physically present in South Africa and

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

years preceding the date of application for citizenship, no such physical

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 preceding the lodgement of an application for citizenship.

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

as not requiring a physical presence in South Africa for any period 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 hypothesised that the Minister of Home Affairs acted

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

Keywords:administrative law; certicate of naturalisat ion; citizenship;

ordinarily resident; resident; regulations; ultra vires

1 Introduction

After the National Party government came into power in 1948, pernicious

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

Indians and ethnic Africans) with the effect that they could not enjoy the

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

the South African Citizenship Act 44 of 1949 conferred citizenship to

1 In Chisuse v Di rector-Gene ral, Departme nt of Home Affairs2020 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, other apartheid laws systematically stripped them of basic

protections and political rights linked to citizenship, 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 homelands being declared in

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

of which resulted in millions of ethnic Africans losing their South African

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-establishing South African citizenship for these Bantustan

citizens failed under the Restoration of South African Citizenship Act 73

of 1986. This contributed to the enactment 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 Constitution of the Republic of South Africa

directed that a common citizenship be established.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 citizenship, is a precept grounded in 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 the Constitution confers

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

19,9 and the right to reside in South Africa and to have 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 Affairs2020 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 Affairs2020 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 Richterv 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”

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

72STEL L LR 2021 1

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