The Democratic Alliance’s Case:
In an effort to uphold the constitutionality of South Africa’s citizenship laws, the Democratic Alliance (DA) initiated legal proceedings against the Department of Home Affairs. Specifically, their challenge focused on Section 6(1)(a) of the South African Citizenship Act 88 of 1995 (referred to as the Act), which the party deemed to be in violation of the Constitution. This particular section of the Act mandates that South Africans who acquire a second nationality automatically forfeit their South African citizenship unless they actively seek to retain it through a successful application for “retention of citizenship” to the Minister of Home Affairs. While Home Affairs asserts that this loss of citizenship is a matter of personal choice, the reality is that numerous South Africans unknowingly lost their citizenship without proper awareness.
The court ruling:
In a momentous development on 13th June 2023, following a tireless 9-year campaign by the DA Abroad and a protracted legal battle, the Supreme Court of Appeal delivered a verdict affirming that South Africans who obtained citizenship in a foreign country, resulting in the loss of their South African citizenship, are now officially recognized as South African citizens once again. This ruling marks a remarkable triumph for the sizable community of approximately 2 million South Africans residing abroad.
How does this ruling impact you?
With the Supreme Court of Appeal’s verdict now in effect, it is possible that the national government may choose to appeal the decision to the Constitutional Court. Recognizing that you likely have concerns about the timeline and practical consequences, we have compiled the following responses to address the frequently asked questions you may have:
Q: Is it accurate that the Supreme Court’s ruling on constitutionality must be endorsed by the Constitutional Court for it to take effect?
Indeed, as per section 167(5) of the Constitution, orders pertaining to the invalidity of constitutional provisions, including the one issued in this instance, become enforceable solely upon confirmation by the Constitutional Court.
Q: Does the Department of Home Affairs have the ability to file an appeal, and what are the specific time limits involved?
Absolutely, Home Affairs retains the right to initiate an appeal. They are required to submit their notice of appeal within 15 working days following the judgment’s date. However, it is important to note that late appeals can be considered if the Court grants permission for such an extension.
Q: In the event of an appeal, will the judgment be put on hold?
Since the order’s implementation depends on the Constitutional Court’s confirmation, there is no requirement for a specific “suspension.” Nevertheless, it is worth noting that, as a general principle, final orders that are subject to an appeal are typically suspended until the appeal process is concluded.
Q: Does Section 6(1)(a) of the South African Citizenship Act 88 of 1995 get automatically invalidated, or does it necessitate amendments by parliament?
There is no need for parliamentary amendments. If the Constitutional Court upholds the order, the provision will be invalidated based on the Court’s ruling.
Q: Should individuals continue to apply for retention of citizenship as a precautionary measure? If so, until when?
It is advisable to adopt a cautious approach and proceed with applying for the retention of citizenship. This remains a recommended course of action until the Constitutional Court delivers its final verdict. If the Constitutional Court upholds the Supreme Court of Appeal’s ruling, favouring the DA’s stance, even those who did not apply for retention will be deemed to have retained their citizenship. However, there is a possibility that the Constitutional Court may dismiss the DA’s application and not affirm the Supreme Court of Appeal’s judgment. In such a scenario, Section 6(1)(a) will remain in effect, resulting in the loss of citizenship for individuals who did not secure permission to retain their South African citizenship.
Q: How does the ruling affect individuals who deliberately chose not to retain their South African citizenship while living in countries that prohibit dual citizenship? Will they be obligated to formally renounce their South African citizenship, and if so, when?
These individuals will now regain their status as South African citizens. While there may be a requirement for them to officially renounce their South African citizenship, as specified in section 7 of the South African Citizenship Act, the specific procedures will be governed by the legislation of the respective foreign country.
Please note that the information provided here is based on the current status of the case and may be subject to change pending further legal developments. It is recommended to stay informed through official sources and legal advice for the most up-to-date and accurate information.