The case of the Democratic Alliance versus the Minister of Home Affairs and Another (67/2022) has become a focal point in the ongoing debate surrounding laws around dual citizenship in South Africa. The matter, which concerns the automatic loss of South African citizenship upon acquiring foreign nationality, is now set to be heard by the Constitutional Court on 5 November 2024. This follows a significant ruling by the Supreme Court of Appeal (SCA) on 13 June 2023, which declared section 6(1)(a) of the Citizenship Act invalid. As the country awaits the Constitutional Court’s final decision, the potential impact on dual citizens and the future of South African nationality remains uncertain.
The SCA’s landmark ruling: A win for dual citizenship in South Africa
The case centres on section 6(1)(a) of the South African Citizenship Act, which mandates the automatic loss of South African citizenship when an individual acquires the nationality of another country, unless they seek permission from the Minister of Home Affairs beforehand. This provision has long been a contentious issue, particularly for South Africans living abroad or those who hold dual citizenship.
In its ruling, the SCA found the provision to be unconstitutional, arguing that it infringes on the right of South African citizens to retain their citizenship while acquiring foreign nationality. The court highlighted that the right to dual citizenship is integral to modern global mobility, allowing South Africans to enjoy the benefits of international opportunities while maintaining their ties to their home country.
Crucially, the SCA’s decision reinstated citizenship for those who had lost it under section 6(1)(a) and applied this reinstatement retroactively. However, the ruling’s final impact depends on confirmation by the Constitutional Court.
Constitutional Court: The next critical step
The upcoming Constitutional Court hearing is set to be a decisive moment in this ongoing legal battle. While the SCA’s judgement offers hope to many South Africans who lost their citizenship, the Constitutional Court’s ruling will ultimately determine the future of this issue.
If the Constitutional Court upholds the SCA’s decision, it could signal a dramatic shift in how South African citizenship is treated in cases involving dual nationality. The matter would then be sent back to Parliament, tasked with amending the Citizenship Act. However, this is not guaranteed. The Constitutional Court may agree with the SCA’s ruling in part, or it could have a different view altogether. The reasons for finding the provision invalid or not will influence the nature of any future amendments to the law.
Even if the Constitutional Court confirms the SCA’s decision, it is important to note that the legal process may still take years before any new law comes into effect. Once the matter is referred to the legislature, drafting, debating, and approving an amended version of the Citizenship Act could be lengthy. This delay may prolong the uncertainty for affected individuals.
A complex issue: The question of retroactivity
One key question that will emerge from the Constitutional Court’s ruling is whether the amendment will apply retroactively. While the SCA’s judgment reinstated citizenship for those who lost it due to section 6(1)(a), the Constitutional Court may take a different approach. There is generally a reluctance in law to apply new legal standards retroactively, as doing so can create legal and administrative challenges.
If the Constitutional Court rules that any changes to the Citizenship Act will only apply going forward, it could mean that South Africans who lost their citizenship prior to the ruling may remain stateless or forced to apply for permanent residency. This would have profound implications for many who have long fought for the restoration of their South African nationality. The Court’s decision on this issue will likely be closely scrutinised, particularly by those advocating for the rights of dual citizens.
What lies ahead?
The Constitutional Court’s upcoming hearing on 5 November 2024 marks a critical point in the ongoing saga of dual citizenship in South Africa. Should the Court confirm the SCA’s decision, it could reshape the legal landscape for South Africans with dual nationality, potentially restoring citizenship to thousands. However, the final outcome remains uncertain. Even if the SCA’s ruling is upheld, the process of amending the Citizenship Act could take years, leaving many in legal limbo.
For now, the fate of South African dual citizens rests in the hands of the Constitutional Court. How this case will ultimately affect those who have lost their citizenship in the past remains to be seen, with the possibility that future amendments might only address cases going forward. As the case unfolds, South Africans at home and abroad await a decision that could redefine the meaning of citizenship in an increasingly globalised world.