Exciting Win in the Supreme Court

There has been a massive win in the Supreme Court of Appeal (“SCA”) for all South Africans who acquired foreign citizenship and lost their South African citizenship by automatic statutory operation and those planning to acquire foreign citizenship.

In terms of the s6(1)(a) South African Citizenship Act 88 of 1995, a South African citizen automatically loses their citizenship if by some voluntary and formal act other than marriage they acquire the citizenship of another country without first applying to the Minister of the Department of Home Affairs (“DHA”) for retention of their citizenship in terms of s 6(2) and being granted the retention.

Thousands of South Africans have lost their citizenship on this basis, and most were not even aware at the time, as the loss is automatic upon the acquisition of foreign citizenship. Many have only found out years later when trying to renew their passport.

The official opposition political party, the Democratic Alliance (“DA”), challenged the constitutionality of s 6(1)(a) and sought to have it declared invalid from October 6, 1995, when the Citizenship Act came into operation, and to have the citizenship of all those who had lost it on this basis, restored. The DHA opposed the application in the Pretoria High Court, and it was dismissed as the court rejected the DA’s contentions. It also dismissed the DA’s application for leave to appeal.

The DA still took the matter to the SCA on appeal and today it upheld the appeal with costs and declared that s6(1)(a) is inconsistent with the Constitution and invalid from October 6, 1995! It further declared that all citizens who had lost their citizenship on this basis are not deemed to have lost it. The unconstitutionality must now be confirmed by the Constitutional Court before it can take effect and this will likely take several months.

 

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