‘Home Affairs got it wrong’: ConCourt asked to reinstate South Africans who lost citizenship under ‘irrational’ law

The Democratic Alliance (DA) says the South African citizenship for individuals who lost it after obtaining citizenship in another country should be reinstated.

One such case involves Philip James Plaatjies, who lost his South African citizenship in 2007 after becoming a naturalised citizen of the United Kingdom (UK), following his marriage to a British woman three years prior.

Unaware of the consequences, Plaatjies was affected by 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.

DA challenges Citizenship Act

Plaatjies’ pursuit of dual citizenship led the DA to challenge the constitutionality of Section 6(1)(a) of the Citizenship Act.

In 2018, the Gauteng High Court in Pretoria ruled against the DA, but the party appealed successfully to the Supreme Court of Appeal (SCA).

The SCA, in its June 2023 judgment, declared the provision unconstitutional and irrational, reasoning that it arbitrarily strips citizenship from individuals who obtain a second nationality, without serving any legitimate governmental purpose.

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The appellant court also found the section irrationally discriminates between individuals who automatically gain dual citizenship and those who formally apply for it, creating arbitrary divisions without legal justification.

The DA now seeks confirmation of the SCA’s ruling from the Constitutional Court (ConCourt) and to restore citizenship to those affected by the section.

The Minister and Director-General of Home Affairs, named as respondents, are not opposing the DA’s application and will abide by the ConCourt’s decision.

DA seeks retrospective order on Citizenship Act

During Tuesday’s proceedings, Advocate Anton Katz, representing the DA, informed the ConCourt that the party was seeking a retrospective order, taking effect either to the Citizenship Act’s enactment in 1995 or to the implementation of the Constitution in 1997.

“Bearing in mind, the respondents have put up no evidence to suggest that an order should not be held to be retrospective or that the order should be suspended,” the lawyer said.

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The advocate argued that the relief sought by the DA was “appropriate”.

“We submit that’s the order that the DA is entitled to and we ask that the court make those order.”

In its written submissions to the ConCourt, the DA has also requested that the Minister and Director-General of Home Affairs be ordered to cover the legal costs.

Watch the proceedings below:

Reinstatement of South African citizenship

Meanwhile, Katz argued that Section 6(1)(A) served no legitimate purpose, especially given the existence of Section 7, which already addresses the “renunciation of citizenship”.

“Not only did the respondents not put up any rationale for the purpose of Section 6(1)(A), but there is no purpose objectively.

“One scratches one’s head when one thinks of what the purpose of the section is when one sees Section 7 exists to provide for the kinds of scenarios that the respondents argued for in the high court and the SCA,” he told the ConCourt.

He further contended that Home Affairs in revoking Plaatjies’ citizenship “got it wrong”.

“He shouldn’t have lost his citizenship. As a matter of law he didn’t but the respondents took the view that he had.

“Whatever they did with his passport or citizenship is something that is a question of law and it needs to be overturned,” Katz said.

The judgment in the case was reserved.

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