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.
