Authored By: S'khulile Cebekhulu
University of Zululand
Court Name:
Constitutional Court of South Africa
Honorable Judges:
➢ Maya CJ
➢ Madlanga ADCJ
➢ Majiedt J (Authoring Judge)
➢ Mhlantla J
➢ Seegobin AJ
➢ Theron J
➢ Tolmay AJ
➢ Tshiqi J
Bench Type: Constitutional Bench
Date of Judgement
6 May 2025
Parties Involved
➢ Applicant: Democratic Alliance (DA)
The Democratic Alliance (DA) is a political party in South Africa, headed by John Steenhuisen. The DA serves as the official opposition in the National Assembly and is recognized for its liberal and free-market principles. In this instance, the DA is working for the public good, aiming to safeguard the rights of South African citizens impacted by the unconstitutional aspect of the Citizenship Act.
The DA’s participation in the case seeks to guarantee that the government honors citizens’ rights and maintains the Constitution. The party has a robust history of contesting the government in court on matters concerning good governance, accountability, and human rights.
➢ First Respondent: Minister of Home Affairs
The Home Affairs Minister is a high-ranking government official in charge of overseeing the Department of Home Affairs, which manages the nation’s citizenship and immigration legislation. At the time of the ruling, the Minister of Home Affairs was Aaron Motsoaledi, though there may have been a change in ministers since that time.
The Minister oversees the execution of the Citizenship Act and is answerable for the Department of Home Affairs’ actions. In this situation, the Minister is advocating for the constitutionality of Section 6(1)(a) of the Citizenship Act.
➢ Second Respondent: Director General, Department of Home Affairs
The head of the Department of Home Affairs is the Director-General, who oversees the daily operations of the department. The Director-General is also tasked with executing the policies and decisions made by the Minister of Home Affairs.
In this instance, the Director-General serves as a respondent in their official role, representing the Department of Home Affairs and the South African government.
Facts of the Case
The matter concerns Section 6(1)(a) of the South African Citizenship Act1, stating that a South African citizen automatically forfeits their citizenship upon acquiring another nationality, unless they receive prior consent from the Minister of Home Affairs. The Democratic Alliance (DA) contested this clause, claiming it is unconstitutional and violates the rights of South African citizens. This situation arose due to many South Africans who had unintentionally forfeited their citizenship upon obtaining a foreign nationality. The DA contended that the clause was arbitrary and had no valid purpose, particularly because dual citizenship is permitted in South Africa.
The DA brought an application in the High Court of South Africa, Gauteng Division, Pretoria (High Court) on behalf of South Africans who, unbeknown to them and to their surprise, had lost their citizenship through the operation of the impugned provision. The DA contended before the High Court that citizens’ rights to citizenship, as guaranteed by section 20 of the Constitution and the interim Constitution, were violated by the automatic loss of citizenship. The DA also contended that this deprivation took place without giving citizens advance warning, without a valid explanation, and without anyone making the decision to deny them that right.
The High Court rejected the DA’s request, stating that the provision served a valid government aim and that the issue related to loss of citizenship, which differs from deprivation and is allowed under section 3(3) of the Constitution.2 The High Court ruled that the loss of citizenship under section 6(2) was not an automatic process but instead occurred through the legal effect of clearly defined voluntary actions taken by the citizen, along with a formal act. The Supreme Court of Appeal approved the appeal and supported it, determining that, in the absence of clear reasons from the Minister of Home Affairs regarding the specific and legitimate aim of the provision, the contested provision was arbitrary and unreasonable. The Supreme Court of Appeal also determined that the contested provision was unreasonable, as it distinguished between South African citizens with dual citizenship and those planning to obtain citizenship or nationality from another country, and that the contested provision unjustifiably restricted political rights, the right to enter and stay in the Republic, and the right to engage in trade, occupation, and profession, as protected by the Constitution. The DA’s effort was initially successful in the Supreme Court of Appeal, which ruled the provision unconstitutional. The Minister of Home Affairs petitioned the Constitutional Court, claiming that the clause was essential to avert dual citizenship and safeguard national security.
Issues Raised
The Constitutional Court was asked to examine
➢ Legality of Section 6(1)(a) of the Citizenship Act 1995: The DA contended that the provision violates the constitutional right to citizenship and the right to dignity. The court needed to ascertain if the provision aligns with the Constitution, particularly Section 20, which declares that a citizen cannot lose their citizenship.
➢ Involuntary Loss of Citizenship: The court needed to decide if the involuntary loss of citizenship according to Section 6(1)(a) constitutes an acceptable “loss” or an illegal “deprivation” of citizenship. The DA contended that the clause is random and holds no valid reason, while the Minister maintained that it is essential to deter dual citizenship and safeguard national security.
➢ Valid Public Objective: The court needed to determine if the provision fulfills a valid public objective. The Minister contended that the measure is essential to stop the misuse of the citizenship system and to guarantee that South Africans do not obtain several nationalities. Nonetheless, the DA contended that the clause is excessively wide and fails to fulfill its intended goal.
➢ Discrimination: The DA further contended that the provision unjustly targets South Africans who obtain a foreign nationality, as they are treated differently compared to those who do not acquire one. The court needed to evaluate if the provision discriminates unfairly against specific groups of citizens.
➢ Retrospective Effect: The court needed to determine if the invalidity declaration should be applied retrospectively and if individuals who had lost their citizenship under the provision should be considered as having never lost it.
➢ Suitable Solution: The court needed to evaluate a suitable solution, which involved determining whether to postpone the invalidity declaration to permit Parliament to rectify the issue or to deliver prompt relief to those impacted by the provision.
Arguments of the Parties
Arguments of the Applicant:
➢ The DA contended that Section 6(1)(a) is unconstitutional because it violates the right to citizenship and the right to dignity.
➢ The regulation is random and has no valid reason for existence.
➢ The DA based its argument on the Constitution, particularly Section 20, which affirms that a citizen cannot lose their citizenship.
➢ The DA further contended that the clause discriminates against South Africans who obtain a foreign nationality, as they are treated differently than those who do not.
Arguments Presented by the Respondent:
➢ The Minister of Home Affairs stated that this measure is essential to avert dual citizenship and safeguard national security.
➢ The participants argued that the provision is in accordance with the Constitution and that citizenship is a privilege rather than a right.
➢ The Minister contended that the measure is essential to avoid misuse of the citizenship system and to guarantee that South Africans do not obtain various nationalities
Judgement / Final Decision
This case concerns a constitutional challenge against section 6(1)(a) (the impugned provision) of the South African Citizenship Act.3 That provision causes South African citizens to lose their citizenship automatically if they voluntarily acquire citizenship in another country, unless they have prior permission from the Minister of Home Affairs.4 In relevant part, the impugned provision reads:
(1) Subject to the provisions of subsection (2), a South African citizen shall cease to be a South African citizen if (a) [that citizen], whilst not being a minor, by some voluntary and formal act other than marriage, acquires the citizenship or nationality of a country other than the Republic.
(2) Any person referred to in subsection (1) may, prior to [their] loss of South African citizenship in terms of this section, apply to the Minister to retain [their] South African citizenship, and the Minister may, if [they] deem it fit, order such retention.”
That Court made an ancillary order declaring that those citizens who had lost their citizenship by virtue of that section, are deemed not to have lost their citizenship.5 Lastly, it made a costs order against the respondents.6 The matter is before this Court for confirmation of the order of constitutional invalidity, in terms of section 167(5), read with section 172(2)(a) of the Constitution, and further read with rule 16 of this Court’s Rules.7
Section 6(1)(a) of the Citizenship Act was unanimously ruled to be illegal and invalid by the Constitutional Court. The court decided that the clause is inconsistent with the Constitution and that the automatic loss of citizenship is an unconstitutional deprivation of citizenship. Everyone who lost citizenship under this clause is considered to have never lost it, according to the court’s ruling. The court also ordered the Minister of Home Affairs to put up an online platform for impacted individuals to regularize their status. The court retained jurisdiction over the dispute to ensure that the Minister complies with the ruling.
Legal Reasoning / Ratio Decidendi
The following tenets served as the foundation for the court’s reasoning: – Citizenship is protected by the Constitution and cannot be taken away. Section 6(1)(a)’s automatic loss of citizenship is arbitrary and has no justifiable public purpose. The provision provides the Minister with unfettered power and infringes on other rights connected to citizenship, such as the ability to vote and the right to enter the country. – The Supreme Court of Appeal’s ruling in the same case, which declared the clause illegal, was one of the earlier rulings the court cited.
The court also relied on international law and comparative jurisprudence, which recognize the necessity of maintaining citizenship and preventing statelessness.
Conclusion
For South Africans impacted by the invalid clause, the ruling represents a major win. The court’s decision underlines the importance of citizenship and the preservation of fundamental rights in the Constitution. The case emphasizes how important it is for the government to make sure that laws uphold citizens’ rights and are constitutional. As mandated by the court, the Department of Home Affairs has announced intentions to establish an online platform for impacted persons to regularize their status. This verdict will have far-reaching repercussions for South Africans who have obtained foreign nationalities and will ensure that they are not unlawfully dispossessed of their citizenship.
The court’s ruling is a tribute to the importance of judicial review and the role of the courts in preserving the Constitution and the rights of citizens. It also underscores the necessity for the government to be transparent and accountable in its actions and to ensure that laws are fair and reasonable. Under conclusion, the Democratic Alliance v Minister of Home Affairs and Anotheris a historic ruling that will have important repercussions for South African citizenship law and the protection of fundamental rights under the Constitution.
Reference(S):
1 88 of 1995.
2 Constitution of the Republic of South Africa, 1996.
3(Democratic Alliance v Minister of Home Affairs and Another, 2025) at para [1].
4 DA case (n3) at para [1].
5 DA case (n3) at para [2].
6 DA case (n3) at para [2].
7 DA case (n3) at para [2].
