Your Right to Belong: A Landmark Dual Citizenship Ruling by the SA Constitutional Court
Your Right to Belong: A Landmark Dual Citizenship Ruling by the SA Constitutional Court
Citizenship is more than just a legal status; it's about who you are and where you belong. For many South Africans, this sense of belonging was unexpectedly taken away. The old South African Citizenship Act (from 1995) stated that if you became a citizen of another country, you automatically lost your South African citizenship. This happened even if you didn't know about this rule or didn't intend to give up your South African citizenship.
But on May 6, 2025, the Constitutional Court, South Africa's highest court, made a groundbreaking decision. They ruled that this part of the law goes against the Constitution, effectively bringing back many "lost" citizens.
If you're interested in the details, you can read the full case here: https://www.saflii.org/za/cases/ZACC/2025/8.html
Why the Law Was Challenged
The Democratic Alliance (DA) took the government to court over this issue. They argued that Section 6(1)(a) of the Citizenship Act (the part of the law that caused people to lose their citizenship) was unconstitutional. Their main points were:
- It violated the right to citizenship protected by Section 20 of the Constitution.
- It took away citizenship without telling people, without good reason, and without anyone making a specific decision to do so.
The DA also asked the court to allow people who had lost their citizenship because of this rule to apply to the Minister of Home Affairs to get it back. Both the Minister and the Director-General of Home Affairs opposed this application.
To show how damaging this law was, the DA presented the case of Mr. Phillip Plaatjes. He's a chartered accountant who became a British citizen in 2007, assuming he would have dual citizenship. He only found out he'd lost his South African citizenship seven years later when he read an online article. When he officially inquired in 2015, it was confirmed that his voluntary act of getting British citizenship automatically meant he was no longer a South African citizen. The court noted that this was "one of the saddest days of his life" as he never intended to give up his South African ties.
"Loss" vs. "Deprivation": A Legal Battle
The High Court initially disagreed with the DA. They said the law wasn't unreasonable because the government has a legitimate interest in managing citizenship. They also argued that citizenship was only lost if someone voluntarily got foreign citizenship and chose not to apply for permission to keep their South African citizenship.
A key part of the High Court's reasoning was the difference between "loss" and "deprivation." The Constitution says no one can be deprived of citizenship. The High Court argued that losing citizenship due to a voluntary act (like applying for a foreign naturalization certificate) was a "loss" by operation of law, not a "deprivation." They also said that not knowing the law wasn't an excuse, and that losing citizen rights was just a consequence of no longer being a citizen.
The Appeal to a Higher Court
The DA then appealed to the Supreme Court of Appeal (SCA), which sided with the DA. The SCA found the law to be unreasonable for several reasons:
- There was no good reason why applying for different citizenship should automatically lead to losing South African citizenship.
- It treated South Africans who already had dual citizenship (e.g., through marriage to a foreign national) differently from those who wanted to acquire another citizenship.
- The law wasn't about people giving up their citizenship voluntarily, as there's a different section of the Act (Section 7) for that.
- Crucially, the SCA stated that the law unjustifiably limited other constitutional rights, such as political rights, the right to enter and stay in South Africa, and the right to freedom of trade, occupation, and profession.
Because of these reasons, the SCA declared the section of the law to be inconsistent with the Constitution.
The Constitutional Court's Final Say
The Constitutional Court (CC) then had to decide whether to uphold the SCA's decision. The CC emphasized how important citizenship is, calling it the source of all people's "right to have rights." They specifically looked at whether the automatic loss of citizenship under the old law amounted to a deprivation of citizenship, which is forbidden by Section 20 of the Constitution.
Justice Majiedt, writing for the unanimous court, stated that the distinction between "loss" and "deprivation" in this context was simply "a distinction without a difference"—meaning it was just a matter of words. When someone's cherished citizenship and related rights are automatically taken away by law, without warning, simply because they have dual citizenship, it is a deprivation.
The CC also strongly reiterated that:
- The right to citizenship is a fundamental right and cannot be limited without a very good reason.
- Section 7 of the Act already deals with people voluntarily giving up their citizenship in a fair way that avoids making them stateless (without any citizenship). The problematic provision, however, unfairly led to the loss of other constitutional rights.
No Good Reason for the Old Law
The Constitutional Court firmly agreed that the old law served no legitimate government purpose. They also pointed out that the fact the Minister could sometimes grant permission for dual citizenship didn't fix the problem; it just highlighted how arbitrary (random and unfair) the rule was. The CC even quoted the SCA, saying that the automatic loss of citizenship, subject to the Minister's uncontrolled decision-making, "is a recipe for capricious decision-making."
The CC showed great sympathy for Mr. Plaatjes, whose story clearly showed how unreasonable the old law was. He lost his South African citizenship without knowing or wanting to, and even the Department of Home Affairs seemed unaware, as he traveled to South Africa many times without issues. The court found that such uncertainty about something as vital as citizenship simply cannot be allowed under the Constitution.
Dual Citizenship Around the World
The court also heard from Dr. Steven Spadijer, a legal expert with dual Australian and Montenegrin citizenship, who shared insights into how other countries handle dual citizenship. His input highlighted that:
- Permitting dual citizenship is now the global norm, not the exception, especially given how connected the world is today.
- Many countries, including some in Africa, specifically protect the right to dual citizenship in their constitutions.
- Many countries also state that citizenship can only be lost if someone voluntarily gives it up.
Dr. Spadijer also brought up a relevant case from Botswana, where their High Court ruled that requiring children to choose between citizenships violated several of their constitutional rights. The Botswana court said that such a requirement leads to a "painful choice" and a "strong sense of deprivation."
The Constitutional Court's Decision
The Constitutional Court concluded that Section 6(1)(a) of the Citizenship Act was unconstitutional. It violated the right to citizenship and, as a result, other constitutional rights like political rights, the right to enter and stay in South Africa, and the right to freedom of trade, occupation, and profession.
To fix this, the CC ordered that:
- The problematic provision is now declared invalid from the very day it was enacted on October 6, 1995.
- All citizens who lost their South African citizenship because of this provision are automatically and retroactively considered not to have lost it.
The Minister was also ordered to pay the DA's legal costs, further underscoring the court's strong belief that the old law was indeed unconstitutional.
This landmark decision shows how seriously the court views citizenship, not just as a legal status, but as a fundamental part of a person's identity and their access to other important rights. It also demonstrates the court's willingness to adapt to global changes when it's necessary to protect the rights of South Africans, no matter where in the world they might be.