South Africa Court resolves arbitrary deprival of citizenship, upholds constitutional mandate

In a unanimous judgment, a nine-judge constitutional bench interpreted citizenship provisions in a manner that confers citizenship rather than depriving it


The Constitutional Court of South Africa, in a judgment dated July 22, conferred citizenship to applicants who had been denied the same by the Department of Home Affairs owing to an interpretation of the amended provisions of the Citizenship Act, 1995. The judgment partially confirmed a judgment of the High Court.

The High Court of South Africa, Gauteng Division, Pretoria had held sections 2(1)(a) and 2(1)(b) of the South African Citizenship Act 88 of 1995 as amended by the South African Citizenship Amendment Act 17 of 2010, 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 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.

When this judgement of the High Court came before the Constitutional Court of South Africa for confirmation, the Constitutional Court refrained from confirming the part of the High Court’s judgment that held the two sections of the Citizenship Act to be constitutionally valid but at the same time it affirmed the other part of the judgement by confirming conferment of South African citizenship to 4 out of 5 applicants while affirming the direction given to the Director-General of the Department of Home Affairs to register their births while issuing them necessary identity documents as mentioned in the High Court’s order.

The Constitutional Court’s judgment was authored by Justice Khampepe as a unanimous decision of a nine judge bench.

Changes brought about by the 2010 amendment.

The 2010 Amendment set about redefining the categories for the acquisition of citizenship. This was done by providing new definitions for citizenship by birth and citizenship by descent. Before the amendment, citizenship by descent could be acquired in 4 ways and after the amendment, the definition was limited to only those who have been adopted under the Children’s Act by a South African citizen. Further, definition of citizen by birth under section 2 was also amended to include a person who was a citizen by birth immediately prior to commencement of the amendment or for someone who is born in or outside the country, one of their parents at the time of their birth was a South African citizen.

Reasons for non-confirmation of invalidity

The Court held that the High Court provided sparse reasons for its findings of constitutional invalidity of those sections of the Citizenship Act. The Court stated that there is no express constitutional provision requiring Judges to furnish reasons for their decisions, the proffering of reasons is a vital component. Further stressing upon the need for a reasoned order, the court said, “this duty to provide reasons is a vital strut to the Judiciary’s legitimacy in our constitutional democracy, which is based on a culture of justification”.

Concluding its contention on why it is unable to confirm the order of constitutional invalidity of certain provisions of the Citizenship Act as decided by the High Court, the Court held, “Without the benefit of a reasoned judgment from the High Court, this Court is placed in an invidious position” and refrained from confirming the same.

The court’s observations on citizenship

The Court observed,

“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 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.”

The Court also looked back at the controversial history of citizenship in the country whereby Many black Africans were denied their citizenship through unfair and discriminatory colonial and apartheid laws.

How South African Constitution defines citizenship

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. The Constitution follows the principle of common citizenship under section 3 and under section 20 it states, “no citizen may be deprived of citizenship”.

Citizenship in South Africa, as per the Constitution, is to be defined by a legislation but that definition must be consistent with the Constitution.

Interpretation of the amendment

The Court came to conclude that the interpretation of the definition of citizenship by birth under section 2 of the amended Citizenship Act “any person who is 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” to be “a person who is a child of a South African citizen, regardless of when that person is born or whether that person in born inside or outside the Republic”.

The court stated that by interpreting the section in this manner, all categories of citizens who acquired citizenship by birth or descent under the previous law (before amendment) would be accommodated and would retain their citizenship rights and further the same people can also become citizens by birth through the amended section if they are born to at least one South African citizen.

The court, thus, simplified the interpretation of the amendment without having to declare it unconstitutional as the High Court had done. The court observed, “The avoidance of interpretations which unduly strain legislative texts is a vital characterisation of the rule of law, which demands that law should generally be clear and ascertainable and respects the primary legislative role conferred on the Legislature.”

Conferment of citizenship

The Court observed that the authorities consistently failed to recognise the applicants’ citizenship and give effect to the rights emanating from it, without providing adequate reasons for this denial. The court thus held,

“…citizenship does not depend on a discretionary decision; rather, it constitutes a question of law. The amended Citizenship Act does not require the Department of Home Affairs to consider any public interest when deciding whether or not to recognise a person’s citizenship. Instead, if the requisite conditions to acquire citizenship are satisfied, the Department of Home Affairs is required to recognise this citizenship and proceed with the concomitant administrative procedures, without any further consideration.”

The complete judgment may be read here.


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