Constitutional Court Declares Law on Automatic Loss of Citizenship Unconstitutional in Landmark Ruling

 

A discussion of Democratic Alliance v Minister of Home Affairs and Another CCT184/23

Previously South African citizens lost citizenship automatically if they voluntarily acquired citizenship in another country, unless they had prior permission from the Minister of Home Affairs to retain their citizenship. The Court found this unconstitutional.

Introduction: The Legal Principles at Stake

At the heart of this Constitutional Court case lies the right to citizenship, which is protected under section 20 of the South African Constitution. The issue was whether section 6(1)(a) of the South African Citizenship Act 88 of 1995, which automatically stripped South Africans of their citizenship if they voluntarily acquired citizenship of another country without prior approval from the Minister of Home Affairs, was constitutional.

Citizenship is more than just a legal status. It enables a person to:

• Live in their home country,
• Vote and participate in public life,
• Enjoy full rights under the Constitution.

The Democratic Alliance (DA) challenged the constitutionality of this provision because it violated the right to citizenship without proper justification, warning, or due process.

Background: Facts and Legal Journey

Who Brought the Case and Why

• Applicant: Democratic Alliance (DA), on behalf of South Africans who had lost their citizenship unknowingly.
• Respondents: Minister and Director-General of Home Affairs.
• Amicus Curiae: Dr Steven Spadijer, provided input on international and human rights law.

The DA argued that many South Africans lost their citizenship automatically, without being informed and without having intended to give it up. This, they said, amounted to an unjustified deprivation of a fundamental right.

How the Lower Courts Decided

• High Court: Dismissed the case. It said:
• The law served a legitimate purpose,
• Loss of citizenship was not the same as deprivation,
• The law only applied to people who knowingly took steps to get another citizenship.
• Supreme Court of Appeal (SCA): Overturned the High Court’s decision and declared the provision unconstitutional, saying:
• There was no rational reason for such automatic loss,
• The law created unfair distinctions between different types of dual citizens,
• It unjustifiably limited several rights, including:
• Political rights,
• The right to remain in South Africa,
• The right to choose a profession.

The matter was then referred to the Constitutional Court for confirmation of the SCA’s decision.

The Constitutional Court’s Decision

1. Is Losing Citizenship Automatically the Same as Deprivation?

The Court said yes. Just because the law says someone "loses" their citizenship instead of being "deprived" of it doesn’t change the fact that:

• They lose a fundamental right,
• No person or body made a formal decision about it,
• There was no justification given for such a serious consequence.

The Court said that the automatic loss of citizenship is a form of deprivation that must comply with the Bill of Rights and be justifiable under section 36 of the Constitution.

2. Was the Law Justifiable?

The Department of Home Affairs tried to justify the law by saying:

• The state has a right to regulate citizenship,
• The Minister has discretion under another part of the Act (section 6(2)).

However, the Court found:

• No legitimate government purpose for the automatic loss provision was provided,
• The Minister’s discretion was not a valid defence, especially since:
• There were no clear rules or guidelines on how that discretion should be used,
• It was irrational to say citizenship could be lost automatically but then "fixed" later by discretion.

In short: the law had no rational basis, and the harm far outweighed any benefit.

Why This Decision Matters

Key Points from the Judgment

• Citizenship is foundational to identity and participation in society.
• Loss of citizenship has grave consequences—you are considered a foreigner under the Immigration Act.
• Many South Africans were affected without realising it, simply by acquiring foreign citizenship for family, work, or safety reasons.
• International law and norms increasingly accept and allow for dual citizenship.
• The idea that dual citizens lack loyalty is outdated in today’s global world.

The Court’s Findings

• Section 6(1)(a) is unconstitutional.
• It violates section 20 of the Constitution (right to citizenship).
• It also indirectly violates:
• Political rights,
• The right to freedom of movement and residence,
• The right to choose a trade, occupation or profession.

Conclusion: What the Court Ordered

The Constitutional Court confirmed the SCA’s ruling and made the following orders:

1. Section 6(1)(a) is unconstitutional and invalid from 6 October 1995, the date the Act came into force.
2. All South Africans who lost their citizenship under this provision are deemed never to have lost it.
3. The Department of Home Affairs must pay the DA’s legal costs, including those of two legal counsels.

Dissolution of Customary Marriage in South Africa | Legal Guide

 A client asked: "I am married under customary law and would like to get divorced. How do I go about dissolving my customary marriage?"

Legal Framework

The dissolution of a customary marriage in South Africa is governed by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Section 8(1) of the RCMA provides the statutory basis for the dissolution process:

"A court may dissolve a customary marriage by a decree of divorce on the ground of irretrievable breakdown of the marriage."  

Core Legal Principles

• A customary marriage - whether registered or unregistered - can only be dissolved by a competent court issuing a decree of divorce.
• Mere separation of the spouses or traditional/cultural acts do not legally dissolve a customary marriage; only a court order has this effect.
• The grounds for divorce are the same as for civil marriages: the marriage must have broken down irretrievably, meaning there is no reasonable prospect of restoring a normal marital relationship.
• The provisions of the Divorce Act 70 of 1979 apply to the dissolution of customary marriages, including matters of property division, maintenance, and custody of children.

Proof and Procedure

• Before a court will grant a divorce, there must be prima facie proof that a valid customary marriage exists. This can include a marriage certificate, evidence of lobola negotiations, witness statements, or photographs of customary rituals.
• The process for divorce in a customary marriage follows the same steps as for civil marriages: filing a summons, serving it on the other spouse, and presenting evidence before the court.
• Registration of a customary marriage is not a prerequisite for its validity or for its dissolution, but registration can simplify proof of the marriage.

Conclusion

To dissolve a customary marriage, you must approach a competent court (such as the High Court or Regional Divorce Court) and obtain a decree of divorce on the ground of irretrievable breakdown. The court will require proof of the existence of the marriage and will apply the same principles as in civil divorce proceedings.

Labour Court clarifies jurisdiction in cross-border employment disputes involving South African public servants abroad

A discussion of Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131. 

Introduction to the Legal Principles

As more South African employees take up roles abroad—especially in government—labour disputes involving foreign postings raise tricky legal questions: Can South African forums like the CCMA or bargaining councils hear these disputes?

In Naidoo v Khosa NO and Others, the Labour Court made it clear: Jurisdiction depends on the legal nature of the employment relationship—not just where the employee lives or works. If a South African entity employs someone under South African law, our labour forums still have authority.

Facts of the Case

• Employee: Ms. Reena Naidoo worked for the Department of International Relations and Cooperation (DIRCO) for 26 years. She was assigned to South Africa’s Permanent Mission to the United Nations in New York.
• Designation: While initially a South African citizen, she later became domiciled in the U.S., leading DIRCO to classify her as Locally Recruited Personnel (LCP).
• Dispute: Naidoo was dismissed for operational reasons and referred an unfair dismissal dispute to the General Public Service Sector Bargaining Council (Bargaining Council), seeking reinstatement.
• Jurisdictional Challenge: DIRCO objected, arguing that since Naidoo was domiciled in the U.S., the Bargaining Council lacked jurisdiction. It also claimed reinstatement was impossible as her position was abolished.
• Ruling by the Bargaining Council: The commissioner upheld DIRCO’s objection, refusing to hear Naidoo’s case.
• Labour Court Review: Naidoo then approached the Labour Court to review the jurisdictional ruling.

Labour Court’s Decision and Key Legal Findings

• The Labour Court rejected DIRCO’s argument, emphasizing that Naidoo was not employed by the Mission as an independent entity—instead, the Mission functioned as an extension of DIRCO, a South African government department.
• The Court found that Naidoo’s employment contract was governed by South African law, with no reference to U.S. law in her employment agreement.
• Bargaining Council’s Scope: The Court reaffirmed that statutory dispute resolution bodies like the CCMA and bargaining councils cannot independently determine jurisdiction with final authority; that role belongs to the Labour Court.
• The Court referenced SA Rugby Players Association v SA Rugby (2008) to support its ruling that jurisdiction depends on the legal framework governing employment, not just the employee’s physical location.
• The Foreign Service Act 26 of 2019 confirmed that DIRCO retained authority over the Mission, reinforcing that Naidoo remained a DIRCO employee.
• The Court also noted that had Naidoo pursued relief in U.S. federal courts, enforcement would be limited by the Foreign Sovereign Immunities Act of 1976, restricting legal action against state entities.
• Final Ruling: The Labour Court found that the Bargaining Council does have jurisdiction and sent the matter back to a different commissioner for reconsideration of Naidoo’s late filing.

Conclusion & Significance of the Judgment

This landmark ruling provides clear guidance on jurisdiction in cross-border employment disputes for South African public servants working abroad. The Court reinforced that jurisdiction is based on the employment relationship’s legal framework, not just the employee’s geographic location. If a South African entity governs the employment contract, local labour forums retain jurisdiction.

Moreover, it confirms that the Labour Court holds ultimate authority in jurisdictional disputes, ensuring legal certainty for employees and employers engaged in cross-border public service roles.

 

Unsolicited Direct Marketing Calls: They're Probably Illegal—Here’s What You Can Do

Introduction

At our firm, we often get calls from frustrated clients who are bombarded with unsolicited marketing phone calls. Many simply hang up, assuming there’s nothing they can do.

But here’s the truth: these unsolicited direct marketing calls are not just annoying—they're likely unlawful.

The Protection of Personal Information Act (POPIA) was updated in April 2025 to give you much stronger rights over your personal information, especially when it comes to unwanted marketing calls. Here’s what you need to know.

You’re in Control—Consent Is Key

• Companies can’t legally call or message you to sell products or services unless you’ve clearly agreed to it first.
• This agreement (called “consent”) must be given by you directly, and you must understand what you’re agreeing to. If you didn’t say “yes,” they’re breaking the law by contacting you.
• Just because you didn’t say “no” doesn’t mean you said “yes.” You have to actively agree (opt in), not just fail to opt out.

How to Stop Unwanted Calls

If you get a marketing call you didn’t ask for, you have the right to:

• Ask who’s calling and where they got your number.
• Clearly tell them you don’t want to be contacted.
• Send a follow-up objection by email, SMS, WhatsApp, or other written means.
• Use your phone’s built-in call-blocking features or third-party apps to block repeated offenders. Note that marketers may use different numbers, so this is not a complete solution.

• Make sure your number is registered with the Direct Marketing Association of South Africa’s (DMASA) Do Not Contact (DNC) registry. This helps reduce calls from DMASA member companies, though it may take a few weeks to see results. Your opt-out registration is valid for three years, after which you must renew it.
• If calls continue despite your opt-out request and registration, you can lodge a complaint with the Information Regulator (the official body that enforces POPIA) or relevant consumer protection bodies.

• You can also ask companies to correct or delete your personal information, and you can do this for free via phone, email, SMS, WhatsApp, post, or even in person. If you call to exercise your rights, the company must record the call and give you a copy if you ask.
• Keep a record of your opt-out requests and any further calls received. This will help if you need to escalate your complaint to authorities.

New Rules for Marketers

• If you’re not already a customer, companies must get your clear permission before sending you any marketing messages.
• They have to make it easy and free for you to say yes or no.
• When asking for your consent, they must tell you exactly what they want to market and how they’ll contact you (phone, SMS, email, etc.).
• If they ask for your consent by phone or automated call, they must keep a recording and give it to you if you request it.

Complaints Are Easier—And You Can Stay Anonymous

• Anyone can file a complaint about unwanted marketing calls, not just the person who got the call.
• You can complain by email, post, courier, fax, or hand delivery.
• The Information Regulator can help you write your complaint or translate it if it’s not in English.
• In some cases, you can ask to keep your identity hidden.

Companies Must Keep Improving

• Every business must have someone in charge of data protection (an Information Officer).
• Companies must keep updating their processes to stay in line with the latest rules and protect your data.

The Bottom Line

The new POPIA rules put you in charge. If a company calls you out of the blue to sell something and you never agreed to it, they’re probably breaking the law. You have the right to:

• Not be contacted without your clear consent.
• Object to the use of your data at any time.
• Act if your rights are ignored.

For businesses, these changes mean it’s time to get serious about data protection and marketing consent—no more excuses.

In short: You don’t have to put up with unwanted marketing calls. The law is on your side, and you have real ways to make it stop.

Customary Marriages, Polygamy, and Property Rights in South Africa: Legal Principles and Recent Case Law

 

Introduction: Understanding Customary Marriages and Polygamy in South Africa

Customary marriages are an integral part of South African society, reflecting the traditions and values of many communities. Unlike civil marriages, which are strictly monogamous, customary marriages may be monogamous or polygamous — meaning a man can have more than one wife, provided certain legal requirements are met. The Recognition of Customary Marriages Act, 120 of 1998 (RCMA), was enacted to protect the rights of all parties in such marriages, especially women, and to clarify the proprietary (property) consequences of these unions.

This article explains the legal principles governing customary marriages, discusses key court cases that have shaped the law, and provides practical guidance for those entering into polygamous unions.

Legal Principles: The Recognition of Customary Marriages Act

Monogamous vs. Polygamous Customary Marriages

• Monogamous Customary Marriage: If a man marries only one wife under customary law, the marriage is automatically “in community of property” unless an antenuptial contract (ANC) is signed beforehand. This means all assets and debts are shared equally between spouses.
• Polygamous Customary Marriage: If a man wishes to marry a second or subsequent wife, he must obtain a High Court order approving a written contract that sets out how property will be shared among all wives. This contract protects the proprietary interests of all spouses.

Requirements for Valid Customary Marriages

To be valid under South African law, a customary marriage must:

• Be negotiated and celebrated according to the customs of the relevant community.
• Involve parties who are both over 18 years old and capable of consenting.
• Not be entered into if either party is already married under civil law (civil marriages are strictly monogamous).

Section 7(6): Protecting Property Rights in Polygamous Marriages

Section 7(6) of the RCMA is crucial for polygamous unions. It requires:

• The husband to apply to the High Court for approval of a written contract before marrying another wife.
• The contract must detail how property will be divided among the husband and all wives, both current and future.
• The court will only approve the contract if it is satisfied that the interests of all spouses are protected.

Case Law: How the Courts Have Interpreted the Law

1. Mayelane v Ngwenyama and Another [2013] ZACC 14

Facts

Ms Mayelane married Mr Moyana in 1984 under customary law. In 2008, Ms Ngwenyama also married Mr Moyana, allegedly without Ms Mayelane’s knowledge or consent. After Mr Moyana’s death, both women sought recognition of their marriages and the right to inherit from his estate.

Court’s Decision

• The Constitutional Court held that, under Xitsonga customary law, the consent of the first wife is required for a valid subsequent customary marriage.
• The Court found that Ms Mayelane’s marriage was valid, but Ms Ngwenyama’s marriage was invalid because she had not obtained the first wife’s consent.
• The Court also clarified that while Section 7(6) does not affect the validity of the marriage itself, it does determine the property consequences: if the required contract is not in place, the subsequent marriage is out of community of property, meaning the new wife does not automatically share in the joint estate.

Key Takeaways

• First wife’s consent is a material requirement for the validity of a subsequent marriage in some customary law systems.
• Section 7(6) protects the property rights of all wives, but non-compliance does not necessarily invalidate the marriage; it affects property sharing.

2. Molokane v Williams and Others [2023] ZAGPJHC 1225

Facts

This case involved two women, both claiming to be the customary wives of the deceased. The first marriage was properly concluded under customary law. The second marriage took place without a court-approved property contract as required by Section 7(6).

Court’s Decision

• The court confirmed that both marriages were valid under customary law.
• However, because the husband had not complied with Section 7(6), the second marriage was deemed to be out of community of property.
• The first wife retained her 50% share of the joint estate, and the second wife could not claim a share in the joint assets.

Key Takeaways

• Court approval of a property contract is mandatory before entering a further customary marriage.
• Failure to comply means the second marriage is out of community of property, protecting the first wife’s interests.

Conclusion: Practical Implications and Guidance

Customary marriages, especially polygamous ones, are legally recognised in South Africa but come with complex legal requirements. The RCMA and recent court decisions aim to protect the rights of all spouses, particularly women, by ensuring that property is fairly divided, and that no wife is disadvantaged when a husband takes another wife.

Practical Steps for Compliance

If you are considering entering into a polygamous customary marriage:

• Obtain Consent: Ensure the consent of the existing wife or wives, as required by customary law and recent court rulings.
• Draft a Property Contract: Prepare a detailed written agreement specifying how property will be shared among all spouses.
• Apply to the High Court: Secure court approval of the contract before marrying another wife.
• Register the Marriage: Register all customary marriages with the Department of Home Affairs to avoid disputes.

Information to Include in the Property Contract

• Full names and ID numbers of all parties.
• List of current assets and liabilities.
• How property will be divided during the marriage and upon divorce or death.
• Maintenance and inheritance arrangements.
• Consent of all existing wives.

Why Compliance Matters

• Protects the rights and interests of all wives and children.
• Prevents future legal disputes over property and inheritance.
• Ensures that all marriages are legally recognised and enforceable.

Customary marriages are a living part of South African law. By following the correct legal steps, all parties can ensure their rights are protected and avoid costly disputes in the future.