The Constitutionality of the Citizenship Act 88 of 1995

On 6 August 2021, the High Court of South Africa (Gauteng Division, Pretoria), in a Judgment penned by Kollapen J, dismissed a constitutional challenge to the Citizenship Act 88 of 1995 (“the Act”). This challenge was initiated by the Democratic Alliance (“the DA”) and concerned the loss of South African Citizenship through the acquisition of a second nationality.

The impetus of the DA’s contention was that section 6(1)(a) of the Act is “irrational and arbitrary and serves no legitimate purpose, and furthermore unjustifiably violates the right to citizenship in terms of section 20 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) as well as all of the other rights that flow from the right to citizenship”. The impugned provision of the Act reads as follows:

(1) Subject to the provisions subsection 2, a South African citizen shall cease to be a South African citizen if- (a) he or she whilst not being a minor by some voluntary and formal act other than marriage acquires the citizenship or nationality of a country other than the Republic[.]

In operation of the aforementioned provision, a South African citizen will lose his/her citizenship if he/she acquires a second nationality and fails to successfully apply to the Minister of Home Affairs to retain their South African citizenship.

Rationality

The DA’s argument that section 6(1)(a) of the Act is irrational and arbitrary was dismissed by the court. This was largely based on the finding that this provision is representative of a careful balance between the interests of an individual with that of the State (and the public purposes linked to the status of citizenship).

The Right to Citizenship

Section 20 of the Constitution provides that: “No citizen may be deprived of citizenship”. In discussing the assessment whether or not the operation of section 6(1)(a) violates this right, Kollapen J makes a distinction between the “deprivation” and “loss” of citizenship, holding that section 20 does not prohibit the loss of citizenship, only the deprivation thereof. On this basis, the court dismissed the DA’s argument and declined to explicitly assess whether or not the operation of section 36(1)(a) of the Act amounts to a justifiable limitation of this right in terms of section 36 of the Constitution (“the Limitations Clause”).

Additional Rights

Although the court recognised that the status of citizenship “triggers” access to various other constitutional rights such as the right to vote and freedom of movement, occupation and profession, the DA’s argument that the operation section 6(1)(a) of the Act is an unjustifiable limitation on these rights was similarly dismissed. In arriving at this conclusion, Kollapen J reasons that the Constitution permits the limitation of these rights in this context and, by virtue of this reliance, such limitation(s) is justifiable in terms of the Limitations Clause.

We trust that you found this article informative, please email info@hjw.co.za for any assistance regarding South African Citizenship related issues and/or the application of the Citizenship Act.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.

[1]           See the Second Amendment to the Constitution of the United States.

[2]          See Government Gazette No. 44593, 21 May 2021. The public has a deadline of 4 July 2021 to submit comment in response to this notice.

[3]          See the Firearms Control Amendment Bill, 2021. The full text of the bill is available at http://www.policesecretariat.gov.za/legislation/FAC_Bill.php.