Home Affairs tasked with ensuring SAns who lost citizenship due to Citizenship Act
The Constitutional Court last Thursday confirmed an order of constitutional invalidity declared by the Supreme Court of Appeal, giving effect to the declaration.
FILE: Department of Home Affairs. Picture: Sethembiso Zulu/Eyewitness News
JOHANNESBURG – The Home Affairs Department is now tasked with ensuring the reinstatement of South Africans who lost their citizenship due to the implementation of the Citizenship Act.
The Constitutional Court last Thursday confirmed an order of constitutional invalidity declared by the Supreme Court of Appeal, giving effect to the declaration.
The provision stipulates that major South Africans who voluntarily acquire the citizenship of another country, outside of marriage, cease to be South Africans in accordance with the act.
The apex court ordered that all South Africans who lost their citizenship as a result of this provision are deemed not to have lost it.
The order of the constitutional court has a retrospective effect, meaning that it is intended to have a backdated consequence, affecting events that preceded it.
In this matter, all citizens who previously lost their citizenship will be deemed not to have lost it.
The constitutional court found that there was no rational reason why a South African would automatically lose their citizenship by acquiring the citizenship of another country.
Although Section 6 subsection 2 allows persons who may lose their citizenship as a result of the operation of the act to apply to the Minister of Home Affairs to retain their South African status, the court finds that this does not save the provision from unconstitutionality.
Justice Steven Majiedt, “The existence of a ministerial power to exercise discretion in terms of Section 6(2) to alter what is otherwise an automatic loss of citizenship is no answer to the question of why citizenship must be lost in the first place.
“The court further notes that section 6(2) of the act provides no criteria at all on how the minister’s discretion is to be exercised and what it’s bounds are. The legislature argues that dual citizenship is permissible, subject only to ministerial discretion. This reasoning is unclear and utterly irrational.”
The apex court also finds that the provision gives the minister broad, unchecked power, which cannot be defended given the violation of fundamental rights.