The South African Citizenship landscape has often been a tool of political headwind resulting in an ever-changing landscape. Pre 1994, the government of the day used the Citizenship Act as a tool to define who could access membership to the South African political sphere and in so doing systematically stripping millions of black South Africans of their citizenship, thereby disenfranchising them. It is therefore not surprising that the Constitutional Court, has had to weigh in on various matters relating to South African citizenship and the acquisition thereof.
The most recent case Chisuse and Others V the Director General , Department of Home Affairs and another  ZACC 20, which was decided in the thick of the covid pandemic, may have escaped the headlines, however, it is noteworthy given the positive impact it has on those persons who potentially qualify for citizenship by birth. The case deals with the amendments to the Citizenship Act 88 of 1995 (“Citizenship Act”) which took effect in January of 2013, and whether those amendments apply retrospectively or prospectively as is the established rule of any new statutory instrument.
The case was first brought before the High Court with the litigants arguing that section 2 of the South African Citizenship Amendment Act 17 of 2010 (“Amendment Act”) was constitutionally invalid for two reasons, namely:
- Section 2(1)(a) was invalid to the extent that it fails to recognize citizenship acquired by descent prior to the date of commencement of the Amendment Act; and
- Section 2(1)(b) was invalid to the extent that it only applies prospectively to persons born after the commencement of the Amendment Act.
Prior to the signing into law of the Amendment Act, a person was a citizen by birth if they were born in South Africa to a South African citizen parent, and a citizen by descent if they were born to a South African citizen parent outside of the country, provided that their birth was registered in accordance with section 13 of the Birth and Deaths Registration Act. The Amendment Act restricted citizenship by descent to adopted children and citizenship by birth to children of a South African citizen, irrespective of whether they were born in South Africa or in a foreign country.
The argument regarding the constitutional invalidity of Section 2 of the Amendment Act was based on two grounds. Firstly, by changing the requirements for citizenship by descent without including a succession clause, the amendment, over night, stripped persons who where citizens by descent prior to the Amendment Act being signed into law of their citizenship. Furthermore, the words “who is born in or outside South Africa”, meant that those born before the commencement of the Citizenship Act were also excluded. The applicants proposed reading in certain words to cure the alleged constitutional invalidity. Secondly, there were those who would have been eligible for citizenship by descent but had not satisfied the registration requirement and therefore were not able to claim citizenship.
The High Court declared the abovementioned provisions of the Amendment Act to be unconstitutional. When asked to confirm the decision, the Constitutional Court did not make the same finding. Not only did the Constitutional Court find that the provisions were not unconstitutional, but that the Amendment Act applied retrospectively.
The Constitutional Court in its unanimous decision found that the phrase “who is born” is not a reference to the present tense, but rather a state of being, just like a person is married is a state of being. Therefore, when read in this context the amendment would apply retrospectively.
The Constitutional Court judgement is important for two reasons. Firstly, it means that all persons born to a South African citizen parent outside of South Africa who could not satisfy the registration requirement can now claim their citizenship by birth. This is particularly relevant to persons whose parents died before their birth was registered or were not able to register their birth due the restrictive apartheid laws of the time. One of the litigants was born in 1969 and was able to prove that one of their parents was a citizen at the time of their birth and was deemed to be a citizen by the court.
The Constitutional Court judgement is particularly interesting in cases where, as an example, a parent fled to a neighbouring country for whatever reason but later died there without registering their child’s birth in South Africa. If the surviving children and/or grand children can prove the South Africa citizenship of the parent who fled South Africa, they should have rights to apply for citizenship. Key here is proof and not conjecture, in law its not what you know, it’s what you can prove that matters the most. Given the retrospective application of the Amendment Act, there may be a number of these and similar types of cases that emerge.
Secondly, Justice Sisi Khampepe made a crucial statement in confirming the citizenship of the litigants. She stated that citizenship does not depend on a discretionary decision of the Department of Home Affairs (“DHA”), it is a question of law. The Amendment Act does not require the DHA to consider public interests when deciding whether or not to recognise a person’s citizenship. Rather, if the requisite conditions are satisfied, the DHA is required to recognise the citizenship and proceed with the necessary administrative procedures without any further consideration.
The court’s view as articulated by Justice Sisi Kamphepe is that the purpose and context of the 2010 amendments indicate an intention to provide a more expansive and generous method of acquiring citizenship. Such an interpretation will no doubt resonate with many who have been systematically deprived of their citizenship, whether by historical injustices or administrative hurdles of the current dispensation.
Author: Munyaradzi Nkomo