The Democratic Alliance (DA) wants the Constitutional Court to endorse the Supreme Court of Appeal (SCA) ruling against the Department of Home Affairs.
This was after the SCA said the section 6(1)(a) of the South African Citizenship Act was inconsistent with the Constitution.
The SCA said this section was invalid from its promulgation on October 6, 1995.
It further extended that those who lost their South African citizenship by operation of section 6(1)(a) of the Act were deemed not to have lost their citizenship.
There has been a long struggle from some ten years to restore the rights of South Africans to their citizenship after taking out citizenship in other countries.
Section 6(1)(a) of the Citizenship Act states that an adult citizen loses their South African citizenship if they take on the citizenship of another country by a voluntary and formal act other than marriage, without first receiving permission from the Minister of Home Affairs to retain their South African citizenship.
The DA dragged the Department of Home Affairs to the high court on this issue nine years ago, but the application was dismissed and refused leave to appeal. Thereafter the DA successfully applied to appeal to the SCA.
The SCA ruled in June 2023 that section 6(1)(a), which was used to withdraw citizenship, was unconstitutional and that those who had lost their citizenship through that part of the ACT were “deemed not to have lost their citizenship”.
The party relied on the evidence of James Plaatjies, a South African living in the United Kingdom (UK). Plaatjies alleged that he discovered that he had probably lost his South African citizenship after reading an online article in 2014. This was after Plaatjies was granted indefinite leave to remain in and UK and became a naturalised citizen in November 2007.
He obtained his first British passport in December 2007.
In its submissions to the Constitutional Court, the DA said the SCA was correct in all aspects in its approach to this matter.
The party contended that the reasoning of the SCA be upheld and the confirmation of the invalidity of section 6(1)(a) be granted.
The party challenged the section on the basis that it served no legitimate government purpose and left both those affected and the respondents (Minister of Home Affairs and the Department of Home Affairs) unaware of who is and who is not a citizen. This, according to the DA, unjustifiably violated rights protected by, inter alia, section 20 of the Constitution and section 20 of the Interim Constitution.
“Notwithstanding the Respondents’ withdrawal of their opposition to this matter, it is necessary for this Court to consider whether to confirm the orders granted by the SCA,” read the court papers.
“The SCA noted the nature, history and importance of the right of the right to citizenship with reference to this Court’s judgement in Chisuse. The SCA further noted the statutory context in which section 6(1)(a) is located, including the availability under section 7 of the Act of a mechanism by which South African citizens can (should they choose) renounce their citizenship.”
The DA said the SCA was also correct to say that section 6(1)(a) was arbitrary also because of its treatment of South African citizens who already have dual citizenship differently from those who intended to acquire citizenship of another country. The SCA also stated that the purpose of section 6(1)(a) cannot be to regulate the renunciation of citizenship because that would render section 7 of the Act redundant.
“There can be no way to take away South African citizenship by automatic operation of law, without regard to a person’s individual circumstances and the reasons they seek dual citizenship,” the papers further read.
On the other hand, Home Affairs contended that section 6(1)(a) cannot be read in isolation. The department said this must be read with section 6(2) in order to appreciate its legitimate purpose.
“To this end, we submit that the reasoning, and the legal conclusions reached by the high court arising from the factual analysis of the matter is completely unassailable, this, notwithstanding the judgement and the reasoning by the SCA. In the premises, we submit that, in considering the constitutionality of the provisions of section 6 (1) (a), the above Honourable Court ought to prefer the approach, interpretation and conclusion adopted by the high court, as opposed to that adopted by the SCA.”
Sunday Independent