A discussion of Democratic Alliance v Minister of Home Affairs and Another CCT184/23

Previously South African citizens lost citizenship automatically if they voluntarily acquired citizenship in another country, unless they had prior permission from the Minister of Home Affairs to retain their citizenship. The Court found this unconstitutional.

Introduction: The Legal Principles at Stake

At the heart of this Constitutional Court case lies the right to citizenship, which is protected under section 20 of the South African Constitution. The issue was whether section 6(1)(a) of the South African Citizenship Act 88 of 1995, which automatically stripped South Africans of their citizenship if they voluntarily acquired citizenship of another country without prior approval from the Minister of Home Affairs, was constitutional.

Citizenship is more than just a legal status. It enables a person to:

• Live in their home country,
• Vote and participate in public life,
• Enjoy full rights under the Constitution.

The Democratic Alliance (DA) challenged the constitutionality of this provision on the grounds that it violated the right to citizenship without proper justification, warning, or due process.

Background: Facts and Legal Journey

Who Brought the Case and Why

• Applicant: Democratic Alliance (DA), on behalf of South Africans who had lost their citizenship unknowingly.
• Respondents: Minister and Director-General of Home Affairs.
• Amicus Curiae: Dr Steven Spadijer, provided input on international and human rights law.

The DA argued that many South Africans lost their citizenship automatically, without being informed and without having intended to give it up. This, they said, amounted to an unjustified deprivation of a fundamental right.

How the Lower Courts Decided

• High Court: Dismissed the case. It said:
  • The law served a legitimate purpose,
  • Loss of citizenship was not the same as deprivation,
  • The law only applied to people who knowingly took steps to get another citizenship.
• Supreme Court of Appeal (SCA): Overturned the High Court’s decision and declared the provision unconstitutional, saying:
  • There was no rational reason for such automatic loss,
  • The law created unfair distinctions between different types of dual citizens,
  • It unjustifiably limited several rights, including:
    • Political rights,
    • The right to remain in South Africa,
    • The right to choose a profession.

The matter was then referred to the Constitutional Court for confirmation of the SCA’s decision.

The Constitutional Court’s Decision

1. Is Losing Citizenship Automatically the Same as Deprivation?

The Court said yes. Just because the law says someone “loses” their citizenship instead of being “deprived” of it doesn’t change the fact that:

• They lose a fundamental right,
• No person or body made a formal decision about it,
• There was no justification given for such a serious consequence.

The Court said that the automatic loss of citizenship is a form of deprivation that must comply with the Bill of Rights and be justifiable under section 36 of the Constitution.

2. Was the Law Justifiable?

The Department of Home Affairs tried to justify the law by saying:

• The state has a right to regulate citizenship,
• The Minister has discretion under another part of the Act (section 6(2)).

However, the Court found:

• No legitimate government purpose for the automatic loss provision was provided,
• The Minister’s discretion was not a valid defence, especially since:
  • There were no clear rules or guidelines on how that discretion should be used,
  • It was irrational to say citizenship could be lost automatically but then “fixed” later by discretion.

In short: the law had no rational basis, and the harm far outweighed any benefit.

Why This Decision Matters

Key Points from the Judgment

• Citizenship is foundational to identity and participation in society.
• Loss of citizenship has grave consequences—you are considered a foreigner under the Immigration Act.
• Many South Africans were affected without realising it, simply by acquiring foreign citizenship for family, work, or safety reasons.
• International law and norms increasingly accept and allow for dual citizenship.
• The idea that dual citizens lack loyalty is outdated in today’s global world.

The Court’s Findings

• Section 6(1)(a) is unconstitutional.
• It violates section 20 of the Constitution (right to citizenship).
• It also indirectly violates:
  • Political rights,
  • The right to freedom of movement and residence,
  • The right to choose a trade, occupation or profession.

Conclusion: What the Court Ordered

The Constitutional Court confirmed the SCA’s ruling and made the following orders:

1. Section 6(1)(a) is unconstitutional and invalid from 6 October 1995, the date the Act came into force.
2. All South Africans who lost their citizenship under this provision are deemed never to have lost it.
3. The Department of Home Affairs must pay the DA’s legal costs, including those of two legal counsels.