BRIAN BENFIELD: Citizenship and the apex court — why the delay?
An SCA ruling that parts of the Citizenship Act are unconstitutional awaits ratification
14 October 2024 - 05:00
byBrian Benfield
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On June 13 last year the Supreme Court of Appeal (SCA) ruled unanimously that section 6(1)(a) of the SA Citizenship Act was inconsistent with the constitution and was therefore invalid from the date of its promulgation on October 6 1995.
It also ordered that those South Africans who lost their citizenship by application of the section of the act in question were deemed not to have lost their citizenship.
As far back as 2021, Business Day published an article by lawyer and Free Market Foundation senior researcher Gary Moore that drew attention to the law’s likely unconstitutionality (“Thousands lose right to SA citizenship without knowing it”, December 7 2021).
On January 26 last year PoliticsWeb published another article by Moore alerting the country to the fact that thousands of South Africans were being peremptorily stripped of their citizenship by this law, most without knowing it, merely because they had accepted citizenship of a second country.
However, Moore’s articles did not complete the horrendous picture. In March last year the SCA heard an appeal regarding the constitutionality of sections 6(1) and 8(2) of the Citizenship Act, under which South Africans had been routinely deprived of their rights — and not just their citizenship rights.
The loss of citizenship meansthe simultaneous loss of almost every other constitutional right, such as the right to reside in SA, to work in the country, to choose one’s occupation, to vote, and the right to be elected to public office. All are denied to people who are deprived of citizenship.
It seems the opposition was asleep at the wheel when this act was passed in 1995, though the home affairs minister at the time, Mangosuthu Buthelezi, resigned partly because he opposed this legislation.
Administrative reasons
The constitution was designed to prevent repugnant laws of this nature. Indeed, section 20 of the constitution consists of a single sentence: “No citizen may be deprived of citizenship.” There are no qualifications to this imperative. This has been confirmed by the SCA and now awaits ratification by the Constitutional Court, where it is unduly delayed, seemingly for administrative reasons.
SA is founded on the supremacy of the constitution and “the rule of law”. The rule of law is an old, complex concept with a long history, but may be described as the opposite of “the rule of man”. When government officials are given discretion to subjectively decide when, if and how a law is to be applied, we have descended into “the rule of man”.
Laws that permit a government official to decide what is in “the public interest” are anathema to the rule of law. What Hendrik Verwoerd and Nelson Mandela thought was in the public interest were clearly two different things. Laws that meet constitutional muster do not grant wide discretion to the responsible officials. On the contrary, they give specific, narrowly defined guidance so that little or no personal discretion can be exercised, ensuring that governance is always by the law and not by the whim or caprice of an individual.
In the most egregious affront to the rule of law, section 6(1) of the Citizenship Act states that citizens wishing to obtain a second passport must first apply to the minister to retain their SA citizenship, and empowers the minister in his or her sole discretion “if he or she deems it fit” to grant such retention.
Moreover, section 8(2)(b) states that the minister “may by order deprive” an SA citizen of his or her citizenship if the minister believes it is “in the public interest” to do so.
Further costs
The Pretoria high court judge who heard this case, judge Narandra Jody Kollapen (now a Constitutional Court judge), not only upheld this law but denied the applicants the right to appeal thejudgment.Moore pointed out the elementary flaws in the judge’s reasoning, as did the subsequent SCA finding.
The applicants in this case were forced to endure further costs and delays by having to apply to the SCA for leave to appeal Kollapen’s finding. That consent was granted and the matter was argued, with judgment duly delivered in June 2023.
Application was made to the Constitutional Court for ratification the same month. No hearing date has yet been forthcoming, but one trusts that it is imminent. When it is due to be heard, Kollapen will no doubt recuse himself.
The University of Lucerne recently published extensive research findings that show most countries permit and sometimes even encourage dual citizenship. Researchers have found that people who make use of such facilities often introduce greater skills, expertise, knowledge, opportunities and wealth to the country.
Australia is one such country, despite the fact that, unlike ours, its constitution does not stipulate that people may not be deprived of citizenship. Other such countries include Germany, Poland, Portugal, Greece, Mauritius, Congo, Italy, Kenya, Nigeria and Namibia.
After nearly three decades, South Africans can at last look forward to this unfortunate piece of legislation finally being expunged from the statute books.
• Dr Benfield, a retired Wits economics professor, is a senior associate and board member of the Free Market Foundation.
Support our award-winning journalism. The Premium package (digital only) is R30 for the first month and thereafter you pay R129 p/m now ad-free for all subscribers.
BRIAN BENFIELD: Citizenship and the apex court — why the delay?
An SCA ruling that parts of the Citizenship Act are unconstitutional awaits ratification
On June 13 last year the Supreme Court of Appeal (SCA) ruled unanimously that section 6(1)(a) of the SA Citizenship Act was inconsistent with the constitution and was therefore invalid from the date of its promulgation on October 6 1995.
It also ordered that those South Africans who lost their citizenship by application of the section of the act in question were deemed not to have lost their citizenship.
As far back as 2021, Business Day published an article by lawyer and Free Market Foundation senior researcher Gary Moore that drew attention to the law’s likely unconstitutionality (“Thousands lose right to SA citizenship without knowing it”, December 7 2021).
On January 26 last year PoliticsWeb published another article by Moore alerting the country to the fact that thousands of South Africans were being peremptorily stripped of their citizenship by this law, most without knowing it, merely because they had accepted citizenship of a second country.
However, Moore’s articles did not complete the horrendous picture. In March last year the SCA heard an appeal regarding the constitutionality of sections 6(1) and 8(2) of the Citizenship Act, under which South Africans had been routinely deprived of their rights — and not just their citizenship rights.
The loss of citizenship means the simultaneous loss of almost every other constitutional right, such as the right to reside in SA, to work in the country, to choose one’s occupation, to vote, and the right to be elected to public office. All are denied to people who are deprived of citizenship.
It seems the opposition was asleep at the wheel when this act was passed in 1995, though the home affairs minister at the time, Mangosuthu Buthelezi, resigned partly because he opposed this legislation.
Administrative reasons
The constitution was designed to prevent repugnant laws of this nature. Indeed, section 20 of the constitution consists of a single sentence: “No citizen may be deprived of citizenship.” There are no qualifications to this imperative. This has been confirmed by the SCA and now awaits ratification by the Constitutional Court, where it is unduly delayed, seemingly for administrative reasons.
SA is founded on the supremacy of the constitution and “the rule of law”. The rule of law is an old, complex concept with a long history, but may be described as the opposite of “the rule of man”. When government officials are given discretion to subjectively decide when, if and how a law is to be applied, we have descended into “the rule of man”.
Laws that permit a government official to decide what is in “the public interest” are anathema to the rule of law. What Hendrik Verwoerd and Nelson Mandela thought was in the public interest were clearly two different things. Laws that meet constitutional muster do not grant wide discretion to the responsible officials. On the contrary, they give specific, narrowly defined guidance so that little or no personal discretion can be exercised, ensuring that governance is always by the law and not by the whim or caprice of an individual.
In the most egregious affront to the rule of law, section 6(1) of the Citizenship Act states that citizens wishing to obtain a second passport must first apply to the minister to retain their SA citizenship, and empowers the minister in his or her sole discretion “if he or she deems it fit” to grant such retention.
Moreover, section 8(2)(b) states that the minister “may by order deprive” an SA citizen of his or her citizenship if the minister believes it is “in the public interest” to do so.
Further costs
The Pretoria high court judge who heard this case, judge Narandra Jody Kollapen (now a Constitutional Court judge), not only upheld this law but denied the applicants the right to appeal the judgment. Moore pointed out the elementary flaws in the judge’s reasoning, as did the subsequent SCA finding.
The applicants in this case were forced to endure further costs and delays by having to apply to the SCA for leave to appeal Kollapen’s finding. That consent was granted and the matter was argued, with judgment duly delivered in June 2023.
Application was made to the Constitutional Court for ratification the same month. No hearing date has yet been forthcoming, but one trusts that it is imminent. When it is due to be heard, Kollapen will no doubt recuse himself.
The University of Lucerne recently published extensive research findings that show most countries permit and sometimes even encourage dual citizenship. Researchers have found that people who make use of such facilities often introduce greater skills, expertise, knowledge, opportunities and wealth to the country.
Australia is one such country, despite the fact that, unlike ours, its constitution does not stipulate that people may not be deprived of citizenship. Other such countries include Germany, Poland, Portugal, Greece, Mauritius, Congo, Italy, Kenya, Nigeria and Namibia.
After nearly three decades, South Africans can at last look forward to this unfortunate piece of legislation finally being expunged from the statute books.
• Dr Benfield, a retired Wits economics professor, is a senior associate and board member of the Free Market Foundation.
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