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The ConCourt rejected the idea that dual citizenship poses a conflict of loyalty.
Picture: iStock
The Constitutional Court (ConCourt) has ruled that a section of the Citizenship Act is unlawful as it violates the rights of people who lost their South African citizenship after becoming citizens of another country.
On Tuesday, the ConCourt delivered its judgment regarding an application brought by the Democratic Alliance (DA).
The DA challenged Section 6(1)(a) of the Citizenship Act, which states that South Africans automatically forfeit their citizenship if they voluntarily and formally acquire citizenship of another country.
According to Section 6(2) of the Act, individuals must apply to the Minister of Home Affairs to retain their South African citizenship before obtaining foreign citizenship.
Reading out the judgment, Judge Steven Majiedt found that Section 6(2) could not save the contested provision from being invalid.
While Majiedt pointed out that international law does not specifically regulate dual citizenship, he said countries have the right to set their own rules.
“In a world of increasing globalisation and transnational mobility, permitting dual citizenship is the norm rather than the exception,” the judge said.
He also highlighted that many countries allow dual citizenship and that several constitutions only permit loss of citizenship through voluntary renunciation.
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This meant citizenship should not be lost simply by acquiring another nationality.
The judge also rejected the idea that dual citizenship poses a conflict of loyalty.
“In sum, the court holds that the impugn provision is unconstitutional as it infringes the right to citizenship, entrenched in Section 20 of the Constitution, and, consequentially, other constitutional rights, namely political rights, the right to enter and remain in South Africa, and the right to freedom of trade, occupation and profession.
“The impugned provision must, therefore, be struck down,” he ruled.
Majiedt also backed the Supreme Court of Appeal (SCA), which earlier ruled that Section 6(1)(a) be struck down with immediate effect, applying from the date the law was introduced.
“The Act came into effect on 6 October 1995 when the interim constitution was still in force.
“The impugn provision is unconstitutional in terms of the constitution, but the same is true in respect of the interim constitution.
“The declaration of invalidity should, therefore, take effect from the date of the Act’s promulgation on 6 October 1995.”
He agreed that the ruling should take effect without delay.
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“There is no need for a suspension order, and the [Home Affairs] department accepted throughout this litigation that in the event of a striking down of the impugn section, such suspension would be unnecessary.”
Majiedt, therefore, concluded that anyone who lost their South African citizenship under Section 6(1)(a) is now considered not to have lost it at all.
The court also ruled that the DA is entitled to its costs, including those of two legal counsel.
These legal fees must be paid by the Minister and Director-General of Home Affairs, who were the respondents in the case.
Both officials have indicated that they will abide by the ConCourt’s decision.
The case began when Philip James Plaatjies lost his South African citizenship in 2007 after becoming a naturalised British citizen.
He had acquired UK citizenship three years after marrying a British woman.
The DA then launched legal action, but the Gauteng High Court in Pretoria initially dismissed its case in 2018.
However, in 2023, the DA succeeded on appeal in the SCA.
The DA has since welcomed the ConCourt’s judgment.
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