Democratic Alliance v Minister of Home Affairs and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondi JA, Schippers JA, Matojane JA, Kathree-Setiloane AJA and Unterhalter AJA
• Judgment Date: 13 June 2023
• Citation: 2023 JDR 2054 (SCA)
• Hearing Date: 23 March 2023
• Docket Number: 67/2022
• Court: Supreme Court of Appeal

Zondi JA (Schippers and Matojane JJA and Kathree-Setiloane and Unterhalter AJJA concurring):

Introduction:

[1]

This appeal concerns the constitutional validity of s 6(1)(a) of the South African Citizenship Act 88 of 1995 (the Act) which provides that adult citizens automatically lose their South African citizenship when they voluntarily and formally acquire citizenship or nationality of another country (except through marriage), without first applying for and obtaining ministerial permission to retain their citizenship. The appellant, the Democratic Alliance (DA) brought an application in the Gauteng Division

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Zondi JA (Schippers and Matojane JJA and Kathree-Setiloane and Unterhalter AJJA concurring)

of the High Court, Pretoria (the high court) in which it sought, among other things, the following order:

'1.

declaring that section 6(1)(a) of the South African Citizenship Act 88 of 1995 ("the Act") is inconsistent with the Constitution of the Republic of South Africa, 1996 ("the Constitution") and invalid from the date of 6 October 1995;

2.

declaring that all persons who had lost their South African Citizenship in terms of section 6(1)(a) of the Act on or after 6 October 1995, are South African citizens;

3.

declaring that all persons referred to in paragraph [2] may apply to the first respondent in terms of section 15 of the Act for the appropriate certificate of citizenship.'

[2]

The high court dismissed the application with no order as to costs. It rejected the contentions that s 6(1)(a) of the Act violates the principle of legality due to its irrationality and that it unjustifiably infringes certain constitutional rights. The high court dismissed the DA's application for leave to appeal. The appeal is before us with the leave of this Court.

Background:

[3]

The DA brought the application on behalf of South African citizens who, to their surprise, discovered that they had lost their South African citizenship through the operation of s6(1)(a). It relied on the evidence of Mr Phillip James Plaatjes, a South African living in the United Kingdom (UK). Mr Paatjes alleges that on 27 February 2004, while working in South Korea, he married a British citizen. Shortly thereafter, the couple moved to the UK. On 8 November 2006, Mr Plaatjes was granted indefinite leave to remain in the UK and became a naturalised citizen on 19 November 2007. In December 2007 he obtained his first British passport. Mr Plaatjes alleges that it was only in July 2014 that he discovered that he had probably lost his South African citizenship after reading an online article. Between 2007 and 2014, he had travelled a number of times using his South African passport without any queries from South African immigration officials.

[4]

On 20 July 2015 Mr Plaatjes went to the South African embassy in London to renew his South African passport. He was told he had automatically lost his South African citizenship by acquiring British citizenship. The embassy officials thereupon

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Zondi JA (Schippers and Matojane JJA and Kathree-Setiloane and Unterhalter AJJA concurring)

cancelled his South African passport. Mr Plaatjes says that he never wanted to leave South African permanently, nor relinquish his South African citizenship.

[5]

Mr Plaatjes, the DA alleged, is one of many South African citizens living abroad who have acquired a second citizenship in good faith, but lost their South African citizenship by virtue of s 6(1)(a) of the Act. The DA contended that s 6(1)(a) takes away their right of citizenship, without any notice to them.

[6]

The respondents opposed the application. They denied that s 6(1)(a) is unconstitutional. They asserted that the DA misconstrued s 6(1)(a). It failed to read s 6(1)(a) with s 6(2) to which the former is subject. The respondents contended that the loss of citizenship under s 6(1)(a) occurs as a result of a voluntary act on the part of the citizen, not the State; and that s 6(2) enables the citizen to retain South African citizenship on application to the first respondent, the Minister of Home Affairs (the Minister).

[7]

Against this background, two issues arise for determination. The first is whether s 6(1)(a) is inconsistent with the Constitution due to its irrationality; and the second, whether the section infringes any right in the Bill of Rights and, if so, whether such infringement is justifiable under s 36(1) of the Constitution. [1]

The constitutional and statutory provisions:

[8]

Section 3 of the Constitution is headed 'Citizenship'. Section 3(1) declares that 'There is a common South African citizenship'. In terms of s 3(2)(a)-(b) 'all citizens are equally entitled to the rights, privileges and benefits of citizenship'; and they are 'equally subject to the duties and responsibilities of citizenship'. Section 3(3) mandates

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Zondi JA (Schippers and Matojane JJA and Kathree-Setiloane and Unterhalter AJJA concurring)

that national legislation must be enacted to provide for the acquisition, loss and restoration of citizenship.

[9]

The Constitution protects citizenship. It expressly provides in s 20 that 'no citizen may be deprived of citizenship'. The Constitutional Court in Chisuse and Others v Director General of Home Affairs and Another explained why it is important to protect the citizenship. It held:

'Citizenship 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. However, caution must be exercised not to overemphasise the importance of citizenship. While it is true that certain rights in our Constitution adhere to South African citizens alone, this Court has repeatedly affirmed that arbitrary and irrational distinctions between citizens and non-citizens are inconsistent with the Constitution. It bears reiterating that the Preamble to the Constitution states that "South Africa belongs to all who live in it" and the rights in the Bill of Rights are afforded to everyone, unless expressly stated otherwise.' [2]

[10]

The Constitutional Court provided the following historical context within which the protection of the citizenship must be understood:

'Citizenship in South Africa, in particular, has a controversial history. Many black Africans were denied their citizenship through unfair and discriminatory colonial and apartheid laws. Under the Black Land Act, Population Registration Act and Bantu Homeland Citizenship Act, black African people were segregated to the detriment of their enjoyment of full citizenship.' [3]

[11]

The Court went on to say that it was important to protect the right to citizenship to prevent the negative impact the deprivation of, or interference with, the right to citizenship will have on the citizen's ability to enjoy his or her life.

'Citizenship and equality of citizenship is therefore a matter of considerable importance in South Africa, particularly bearing in mind the abhorrent history of citizenship deprivation suffered by many in South Africa over the last hundred and more years. Citizenship is not just a legal status. It goes to the core of a person's identity, their sense of belonging in a community and, where xenophobia is a lived reality, to their security of person. Deprivation of, or interference with, a person's citizenship status affects their private and family life, their

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choices as to where they can call home, start jobs, enrol in schools and form part of a community, as well as their ability to fully participate in the political sphere and exercise freedom of movement.' [4]

[12]

The South African Citizenship Act is the legislation contemplated in s 3(3) of the Constitution. It came into effect on 6 October 1995. Its purpose as set out in the P reamble is 'to provide for the acquisition, loss and resumption of South African citizenship. . .'. That purpose is reflected in the design of the Act. Chapter 2 deals with the acquisition of South African citizenship. It stipulates how South African citizenship can be acquired. This can be by birth, descent, naturalisation or by grant by the Minister of a certificate of naturalisation to any foreigner who meets certain specified requirements.

[13]

Chapter 3 of the Act, in which ss 6, 7, 8 and 10 [5] are located, deals with the loss of citizenship. Section 6 provides:

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Zondi JA (Schippers and Matojane JJA and Kathree-Setiloane and Unterhalter AJJA concurring)

'(1)

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

(a)

he or she, 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; or

(b)

he or she in terms of the laws of any other country also has the citizenship or nationality of that country, and serves in the armed forces of such country while that country is at war with the Republic.

(2)

Any person referred to in subsection (1) may, prior to his or her loss of South African citizenship in terms of this section, apply to the Minister to retain his or her South African citizenship, and the Minister may, if he or she deems it fit, order such retention.

(3)

Any person who obtained South African citizenship by naturalisation in terms of this Act shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic does not support.'

[14]

The consequences of loss of South African citizenship are dealt with in chapter 4. The relevant provisions are contained in s 11(3) which provides the following:

'Whenever-

(a)

a South African citizen by...