South African Supreme Court of Appeal Rules Automatic Loss of Citizenship Unconstitutional

The Supreme Court of Appeal (SCA) has ruled that the automatic loss of South African citizenship after gaining citizenship in another country is unconstitutional. 

In a recent case heard by the SCA, the court upheld an appeal by the Democratic Alliance (DA) brought on behalf of South African citizens challenging the automatic loss of South African citizenship through the operation of s 6(1)(a) of the South African Citizenship Act 88 of 1995.

 

This section provides that a South African citizen would cease to be a South African citizen if they, whilst not being a minor, by some voluntary and formal act other than marriage, acquire the citizenship or nationality of a country. An affected person must first apply for and obtain ministerial permission to retain their citizenship, before applying for citizenship of another country.

 

One Plaatjes, a South African living in the United Kingdom became a naturalised citizen of the UK. Years later, he went to the South African embassy in London to renew his South African passport to learn he had automatically lost his South African citizenship by acquiring British citizenship. The embassy officials thereupon cancelled his South African passport. Mr Plaatjes never wanted to leave South Africa permanently, nor relinquish his South African citizenship.

On behalf of Plaatjes, the DA challenged the constitutional validity of s 6(1)(a). The Minister of Home Affairs opposed the application.

 

Judge Zondi, on behalf of the SCA, said the Minister’s lawyers were unable to point to a legitimate government purpose which the section of the Act sought to achieve “save for a generalised submission that its purpose is to regulate the acquisition and loss of South African citizenship”.

 

The SCA declared that s 6(1)(a) of the South African Citizenship Act 88 of 1995 is inconsistent with the Constitution and is invalid from its promulgation on 6 October 1995. It further declared that those citizens who lost their citizenship by operation of s 6(1)(a) are deemed not to have lost their citizenship.

 

In declaring the section unconstitutional, and backdating that invalidity to 1995, Judge Zondi said others in a similar situation to Plaatjes must “enjoy the benefit of restoration without the need for any further litigation”.

This welcome judgment ensures protection for citizens who acquired citizenship in another country while not intending to permanently leave South Africa or relinquish their South African citizenship.