'Arbitrary & Overnight Deprival Of Citizenship Against Rule Of Law': South Africa Constitutional Court Reinterprets Its Citizenship Amendment Act [Read Judgment]

The Constitutional Court of South Africa recently reinterpreted the country's Citizenship Amendment Act of 2010, which had drastically changed the definition of 'citizenship by descent',  by holding that persons born in other countries, before or after the commencement of the Amendment Act, are entitled to South African citizenship as long as one of their parents is South African.

The Gauteng Division of the High Court of South Africa had declared section 2(1)(a) and section 2(1)(b) of the South African Citizenship Act of 1995, as amended by the South African Citizenship Amendment Act 17 of 2010. Though it did not confirm the High Court declaration, it reinterpreted the Act and saved many persons from the risk of arbitrary and overnight deprival of Citizenship.

Justice Khampepe authored the unanimous judgment for the nine judge Constitution bench.

The 2010 Amendment drastically changed the definition of Citizenship by Descent. The applicants, who challenged these provisions are having one of their parents as a South African citizen at the time of their birth (they were born before 2010 amendment came into force). They contended that by not including a provision which retains the citizenship of those who acquired citizenship by descent in terms of 1995 Act, the section 2(1) of the amended Citizenship Act has the effect of stripping those individuals of their South African citizenship.

Pre-Amendment Citizenship by Descent Law

Before its amendment in 2010, a person could acquire citizenship by descent in the following ways: First, if they were a citizen by descent immediately prior to the commencement of the 1995 Citizenship Act, they would remain so. Secondly, a person could acquire citizenship by descent if they were born outside of South Africa and one of their parents was a South African citizen and their birth was registered.Thirdly, if a person was born outside of South Africa and one of their parents had resumed South African citizenship and they had entered South Africa to reside in the country permanently, that person would be a citizen by descent. Fourthly, a person would acquire citizenship by descent if they were born outside of South Africa and they had subsequently been adopted by a South African citizen in terms of the Child Care Act and their birth was registered.

Changes brought by 2010 Amendment

By the amendment Act of 2010, Section 3, which dealt with citizenship by descent was altered and the meaning of "citizen by descent" was modified to apply to only those who have been adopted in terms of the Children's Act by a South African citizen.

Section 2, which dealt with 'citizen by birth' was also amended to read (1) Any person— (a) who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010, was a South African citizen by birth; or (b) who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth.

Interpretation of "Any Person Who Is Born"

The issue considered by the Court was whether the words "is born" can be interpreted to apply to those born before the commencement of the 2010 Amendment? The court observed:

"The word "is" would generally be used to refer to the present tense and the word "was" in relation to the past tense. The term "is born", however, can also correctly be used to describe a state of existence. Thus, the phrase "who is born in or outside of South Africa [to a South African parent]" is stative: it is used to connote the condition or status of a person and does not indicate a tense. It describes a state of being, in the same way that references to a person who "is married", "is South African" or "is adopted [by a South African parent]" similarly connote states of existence. In this form, the word "is" is used to link the person (subject) with the complement, "born in or outside of South Africa [to a South African parent]", to identify an existing condition. It is evident that this interpretation, applying also to those born before the commencement of the 2010 Amendment, is grammatically sound and would be the interpretation that is most in line with section 39(2) in that it does not arbitrarily deprive persons of their citizenship overnight. In this regard, whilst "any person who was, is or will be born" may be the more comprehensive form of the phrase, "any person who is born" similarly includes all persons born yesterday, today and tomorrow. This is not only a reasonable construction of the text, but also a constitutionally compliant one, in contrast to that which gives the word "is" a narrow interpretation."

The court observed that the other narrow, prospective-only interpretation strips citizenship rights from a great number of people 'in the most unfair and unjustified manner'. "It is that interpretation which would render the operation of the 2010 Amendment retrospective by wiping out citizenship that existed under the previous Acts without replacing it with another form of citizenship, and by taking away citizenship rights without retaining those previously-acquired rights.", it added. The court further observed:

"A finding that the section only applies prospectively would have the effect of excluding not only the vast majority of those who had acquired citizenship by descent, but also those who, like the applicants in this matter, are excluded from the ambit of the section merely by the date of their birth. This interpretation would not only rub against the section 20 right which protects against the deprivation of citizenship, but also against the rule of law and section 9 which prohibit irrational distinctions between groups of individuals. This interpretation would also expose some individuals to the risks of statelessness. Further, it would be contrary to the spirit and purpose of the legislation, which seeks to widen the pathways to South African citizenship rather than narrow them." 

Interpreting the Amendment Act thus, the Constitutional Court refused to confirm the High Court's order declaring the provisions constitutionally invalid. It concluded thus:

Therefore, when construed in their proper context, the words "any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen" mean a person who is a child of a South African citizen, regardless of when that person is born or whether that person is born inside or outside the Republic. The words give us a description of a person who is entitled to citizenship by birth under section 2(1)(b). What qualifies the person concerned for citizenship is the fact that at least one of their parents is a South African citizen and their citizenship accrues at the time of their birth.

Further, this reading of the section would accommodate all categories of citizens who acquired their citizenship through either birth or descent in terms of the 1995 Citizenship Act. Those who were citizens by birth in terms of the 1995 Citizenship Act, as set out above, would retain their citizenship rights under section 2(1)(a) of the amended Citizenship Act. They may also obtain citizenship by birth through section 2(1)(b) of the amended Citizenship Act if they were born to at least one South African parent.

Citizenship does not depend on a discretionary decision; rather, it constitutes a question of law

The court also confirmed the direction issued by the High Court to the Director-General of the Department of Home Affairs to issue the necessary documents recognising the four applicants' citizenship as soon as possible. The High Court, in this case had considered the evidence of citizenship brought by these applicants and found that the requirements had been met by them. The Court said:

"The reason for this is that citizenship does not depend on a discretionary decision; rather, it constitutes a question of law. The amended Citizenship Act does not require the Department of Home Affairs to consider any public interest when deciding whether or not to recognise a person's citizenship. Instead, if the requisite conditions to acquire citizenship are satisfied, the Department of Home Affairs is required to recognise this citizenship and proceed with the concomitant administrative procedures, without any further consideration.

Case name: YAMIKANI VUSI CHISUSE vs. DIRECTOR-GENERAL, DEPARTMENT OF HOME AFFAIRS

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