Author: CHARMAINE SEERANE

Introduction

In Democratic Alliance v Minister of Home Affairs,  the Court observed that “citizenship is the gateway through which several rights in the Constitution can be accessed. It enables a person to enjoy freedom of movement, freedom of trade, and political representation.” Yet section 6(1)(a) of the Citizenship Act slams that gateway shut for dual nationals, does it pass constitutional muster? This case concerns a constitutional challenge against section 6(1)(a) of the South African Citizenship Act 3. That provision automatically deprives South African citizens of their citizenship if they voluntarily acquire citizenship in another country, unless they have the Minister of Home Affairs’ prior permission.

FACTS OF THE CASE

The Democratic Alliance (DA) launched a public interest challenge against section 6(1)(a) of the South African Citizenship Act on behalf of South Africans abroad who unknowingly lost citizenship by acquiring a foreign nationality without prior ministerial approval. Mr Phillip Plaatjes, a Cape Town-born chartered accountant, exemplifies this. After qualifying in 2002, he taught in South Korea from 2003, married British citizen Karen Crouch in 2004, and naturalised as a UK citizen in 2007, mistakenly believing it created dual citizenship. Despite renewing his SA passport in 2005 and travelling to SA multiple times (2007-2014) with his British family, who were questioned by immigration, he learned of the automatic forfeiture only in 2014 via an online article. On his SA passport’s expiry in July 2015, the London embassy cut it and stamped it “cancelled,” confirming his loss of citizenship while granting permanent residency. Plaatjes, distressed and driven by professional integrity, highlighted widespread confusion among expatriates, unknown even to the Department of Home Affairs.

ISSUES

whether the automatic, ex lege (by law) loss of citizenship constitutes a de facto (factual) deprivation of citizenship and thus constitutes an infringement of the constitutional right to citizenship. Put differently, is there a distinction between the automatic loss of citizenship as it occurs under the impugned provision and a de facto deprivation of citizenship, as the High Court held?

ARGUMENTS PRESENTED

The Appellant’s Arguments

The Democratic Alliance (DA) argued that section 6(1)(a) of the South African Citizenship Act 88 of 1995 infringes the right to citizenship under section 20 of both the Constitution and the Interim Constitution by depriving individuals of South African citizenship without consent or warning. This deprivation lacks any legitimate government purpose, rendering it irrational and unjustifiable under sectio36. Respondents’ claim that the provision enables voluntary renunciation is misplaced, as section 7 of the Act already serves that function. Ministerial discretion under section 6(2) offers no salvation; it fails to justify the initial automatic loss. It grants the Minister broad, unchecked power without guidelines, exacerbating infringements on citizenship, a fundamental right, and consequential losses of basic rights such as political participation and residence. Parties agree that no suspension or limitation of retrospectivity is needed for invalidity declarations.

Respondent’s Arguments

 The respondents opposed the application. They denied that the impugned provision is unconstitutional and contended that the DA misconstrued the section by failing to read it alongside section 6(2). They claimed that the loss of citizenship under the impugned provision results from a voluntary act by the citizen, not the state, and that section 6(2) enables a South African citizen to retain citizenship on application to the Minister. The respondents also argued that the state has a right to regulate the process by which citizenship is acquired and lost, including that of dual citizenship. The Act provides a mechanism by which a citizen can seek permission to hold dual citizenship, and, failing that, the loss of citizenship cannot be said to be effected within a legal framework that is irrational and unconstitutional.

 COURT’S REASONING AND ANALYSIS 

The court submitted that the passage underscores the profound importance of South African citizenship, rooted in the “right to have rights, deemed the ‘most precious’ status, protected against arbitrary deprivation. Section 3 of the Constitution establishes common citizenship, entitling all to equal rights and duties, with national legislation regulating acquisition, loss, and restoration. Section 20 of the Bill of Rights explicitly prohibits deprivation of citizenship. Historically, apartheid-era policies stripped Black South Africans of citizenship, as lamented by Sol Plaatje..

The South African Citizenship Act 1995 outlines acquisition via birth (section 2), descent (section 3), naturalisation (section 4), or ministerial grant (section 5). Loss triggers severe immigration consequences, section 11 (3), treating ex-citizens as undocumented foreigners. Renunciation requires a declaration under section 7, automatically ending citizenship and minors’ if the other parent is a non-citizen. Deprivation applies to naturalised citizens for fraud (section 8(1)) or to dual citizens for serious crimes/public interest (section 8(2)), and to minors if a parent loses status (section 10). The impugned provision’s automatic, non-consensual loss starkly contrasts with the constitutional one.

THE COURT’S JUDGEMENT AND RATIO DECIDENDI

The Constitutional Court held that section 6(1)(a) of the South African Citizenship Act 88 of 1995 was unconstitutional, as it directly infringed the right to citizenship under section 20 of the Constitution and, by extension, political rights, the right to enter and remain in South Africa, and freedom of trade, occupation, and profession. The provision warranted striking down. The Court endorsed the Supreme Court of Appeal’s (SCA) remedy, which invalidated the section with immediate effect from its enactment on 6 October 1995, when the interim Constitution applied, finding the SCA’s reasoning unassailable. No suspension was needed, aligning with the Department’s concession.

The Court confirmed the SCA’s invalidity order and declared s 6(1)(a) inconsistent with the Constitution, invalid from 6 October 1995. It further deemed citizens who lost citizenship under this section as never having lost it. Respondents were ordered to pay the applicant’s costs, including the costs of two counsel.

CRITICAL ANALYSIS

Significance of the decision

It affirmed citizenship under section 20 as a fundamental, justiciable right, rejecting automatic loss of citizenship for acquiring dual nationality as an unjustified deprivation lacking a legitimate purpose or rational connection under section 36. Ministerial discretion failed to salvage it due to its unfettered, criterion-less nature. Retroactive invalidity from 1995 restored affected citizens’ status, endorsing globalisation trends and SCA remedies. This safeguards linked rights (political, residence, trade, and transnational mobility, curbing arbitrary state power over identity and loyalty.

Implication and impact

 It implies that South African citizenship cannot be automatically stripped for dual nationality, protecting it as a core right under section 20 against unjustified limitations in section 36. Impacts include retroactive restoration for thousands affected since 1995, enabling full political participation, residence, and economic rights; curbing ministerial overreach; aligning SA with global dual-citizenship norms; and preventing Immigration Act deeming as “foreigners.” It sets a precedent for the supremacy of the Bill of Rights in citizenship laws.

CONCLUSION

The case invalidates section 6(1)(a), safeguarding section 20 citizenship from automatic dual-nationality loss. It rejects irrational deprivation, restores retroactive rights, embraces global norms, and upholds the primacy of the Bill of Rights, unlocking political, residence, and trade freedoms for expatriates.

BIBLIOGRAPHY            

Democratic Alliance v Minister of Home Affairs and Another [2025]ZACC 08  Tania Broughton, Constitutional Court strikes down part of the South African Citizenship Act