SCA rejects loss of SA citizenship on acquisition of dual nationality

The Supreme Court of Appeal (SCA) has struck down a provision in the Citizenship Act that automatically strips South Africans of their nationality on acquiring citizenship of another country.

The case arose after the DA appealed to the SCA after the high court dismissed an application in 2021 on behalf of such citizens who discovered they had lost their citizenship after acquiring dual nationality without being forewarned by Home Affairs. The SCA held the automatic loss was “irrational” and ordered the provision contained in the Citizenship Act be struck down, restoring SA nationality to “all persons who had lost their SA citizenship” as a result of the provision.

The DA provided evidence, including that of Philip Plaatjes, a South African living in the UK. In 2007 he became a naturalised citizen and obtained a British passport. Between 2007 and 2014, he had moved between SA and the UK without issues.

But in 2015, when attempting to renew his SA passport at the SA embassy in London, Plaatjes was told he had automatically lost his SA citizenship and his passport was cancelled, despite him not wanting to abandon his SA citizenship or leave SA permanently.

The DA contended this is a violation of rights and unconstitutional, and argued that the automatic loss of citizenship served no legitimate purpose.

The department of home affairs denied the legislation was unconstitutional, arguing that the DA misunderstood the law. It further noted a provision that allows a person to apply to the minister to retain SA citizenship before acquiring another.

Writing for unanimous court on Tuesday, judge Dumisani Zondi said the department had been unable to explain the purpose served by the automatic loss provision and had merely provided “a generalised submission” about regulating citizenship.

Zondi was unmoved by the provision that people could apply to the minister to retain SA citizenship, noting that it “merely underscores the arbitrariness and irrationality” of the main provision. Zondi pointed to the irrationality of having a legislative provision that deprives someone of rights, but is then linked to an authority who can exercise a discretion to not deprive those rights.

“Every arbitrary deprivation” of rights could be made “legitimate” because some authority can decide to exercise a discretion, Zondi said.

He also noted that SA recognises dual citizenship. In light of this, it made no sense that a foreign person can acquire SA citizenship and hold a dual citizenship, but an SA citizen automatically loses SA citizenship by acquiring foreign citizenship.

“The legislative scheme,” Zondi concluded, “permits the loss of South African citizenship without any decision being made by any person, and without any notice to the affected citizen”, which was “indefensible”, “capricious” and “unfair”.

Zondi said the department appeared to become aware of someone gaining foreign citizenship only when that person renews their passport, as occurred with Plaatjes.

The minister’s powers are “vague and undefined”, he wrote, and that should not be the case when dealing with the retention of a fundamental right such as citizenship.

The importance of SA citizenship, Zondi said, is that it is a gateway to other rights in the constitution. So when a citizen loses citizenship, other fundamental rights are lost too. “The existence of [all] these rights,” he concluded, “cannot depend on a decision of the minister who may in the exercise of his wide and unconstrained discretion ... allow or refuse [citizenship].”

Zondi found the automatic loss of citizenship was unconstitutional and should be struck down. Moreover, anybody affected by the provision must have their citizenship restored.

The DA said it “celebrates with thousands of South Africans abroad who had unknowingly lost their citizenship due to a draconian piece of apartheid legislation.”

The department had not replied to request for comment at the time of publication. Should it appeal, the matter will be heard by the Constitutional Court. Still, the ruling affects legislation, and the matter must in be confirmed by the apex court.