Concourt mulls changes to controversial citizenship law

The Constitutional Court is mulling changes to legislation introduced in 2013 which four individuals say stripped them – and several others – of their entitlement to South African citizenship overnight.

Yamikani Vusi Chisuse, Martin Ambrose Hoffman, Amanda Tilma and a 12-year-old girl – represented by Lawyers for Human Rights – last week argued before the highest court in the land, for an order declaring sections of the South African Citizenship Act, invalid and unconstitutional.

Chisuse, Hoffman, Tilma and the minor child involved were all born to South African parents outside of the country’s borders.

They say as children of South Africans, they had a birthright to citizenship along with all the benefits that come with it. And they say that the sections in question – which came about when the act was amended in 2010, with those amendments taking effect on 1 January 2013 – have robbed them of that right.

On Thursday, advocate Isabel Goodman – for Chisuse, Hoffman, Tilma and the minor child involved – argued in court that: “Overnight … those who had acquired or could acquire citizenship by parenthood under predecessor legislation were stripped of their citizenship. They were citizens on 31 December 2012; but not citizens on 1 January 2013”.

On the applicants’ version, before the act was amended, “any person born after 1949 outside South Africa to a South African parent became a South African citizen by descent”.

But after, the definition of ‘citizenship by descent’ was changed to the effect that this type of citizenship is now acquired through adoption by a South African citizen and ‘citizenship by descent as it was previously defined – that being the acquiring of citizenship through parenthood – is now a type of ‘citizenship by birth’.

They have argued that the act in its current form, provides for the continued citizenship fof anyone who was a citizen by birth prior to 1 January 2013; but that it does not make any provisions for those who were citizens by parenthood – like Chisuse, Hoffman, Tilma and the minor child involved – at the time.

“The importance of the right to citizenship cannot be gainsaid. It is central to personhood and dignity. It is also the gateway to a host of other rights and benefits, like the right to vote, the right to a passport, and freedom of trade,” Goodman said in her heads of arguments.

In June 2018, the matter came before the South Gauteng High Court, in Johannesburg, on an unopposed basis, and an order was granted in terms of which the sections in question were declared invalid and unconstitutional and the applicants were all declared South African citizens.

Now, though, with the matter before the Constitutional Court for confirmation, the department is fighting to maintain the current status quo.

In his heads of arguments, advocate Seth Nthai – for Home Affairs – said the matter was not properly opposed in the high court, in part, because the “the workload in the Department of Home Affairs makes it practically impossible for the officials to perform the services with the efficiency required”.

“There are five officials in the Litigation Directorate and each one has approximately 1200 pending cases to handle. The [department] receives about 150 cases per week. [It] has between eight and ten thousand cases pending in various courts in the country,” Nthai said.

But he said the matter was of “extreme importance”.

Nthai said even if the applicants had a right to citizenship, the limitations imposed by the section were reasonable and justified.

“The Legislature amended the [act] to remedy the deficiency of that act. This is so because the repealed section … opened the floodgates of potential fraudulent citizenship and abuse of the citizenship system,” he said, “The harsh reality is that there are simply insufficient resources available to cater for all the various persons who might enter South African borders requiring citizenship in order to access benefits, rights and privileges that go with it”.

Judgment has been reserved.

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