CLAUDIA PIZZOCRI: Revocation and loss of citizenship is a painful double-edged sword
Home affairs minister needs to make informed decisions surrounding complex topic of citizenship
22 January 2025 - 05:00
byClaudia Pizzocri
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The right to a nationality is enshrined in article 15 of the Universal Declaration of Human Rights and recognised in many other international and regional human rights instruments.
Under international law depriving someone of their nationality is only permitted under narrow circumstances. In most countries and jurisdictions the minimum requirements are that there must be a legal basis, doing so must serve a legitimate purpose and the process must be proportionate, adequate and necessary.
In line with international standards, section 20 of the SA constitution states that “no citizen may be deprived of citizenship”, and the SA Citizenship Act provides the legislative framework within which to uphold this right, including the so-called “special circumstances” under which SA citizenship can be revoked by ministerial order, on the proviso that nobody may be rendered stateless by this action.
Section 8(2) of the act contemplates deprivation when the citizen is also a citizen of another country, if the home affairs minister is “satisfied that (a) such citizen has at any time been sentenced in any country to a period of imprisonment of not less than 12 months for any offence which, if it was committed outside the republic, would also have constituted an offence in the republic; or (b) that it is in the public interest.”
Painful injustice
On December 6, before wrapping up the year and his first semester as home affairs minister, among numerous upbeat media statements, social media posts and even celebratory dances lauding the progress made by his TeamHomeAffairs, the DA’s Leon Schreiber released a statement announcing the deportation of Janusz Walus, the Polish extremist who served a long prison sentence for assassinating Chris Hani.
News of the deportation sparked immediate controversy. For Hani’s widow, his family and all other parties that had for years fiercely opposed his release on parole, it was a painful injustice carried out in the name of the rule of law.
The ANC soon joined the outcry, opposing the deportation on the basis that it should have not been permitted without a full confession from Walus. ANC secretary-general Fikile Mbalula said Walus owed South Africans an explanation as the party believed there was a wider conspiracy to murder Hani.
Schreiber clarified that Walus’s immediate deportation was due to his illegal immigration status and the conclusion of his two-year parole period, noting that “the department of home affairs comes in at the end of this particular process”. Striking a reasonable balance in the controversy, Schreiber described it as “a painful day for SA”, adding: “Probably the only thing worse than having him a free man in Poland is him being a free man illegally in SA”.
Crucial to this outcome was the revocation of Walus’s SA citizenship in 2017 by then ANC home affairs minister Malusi Gigaba, upon which Walus’s defence relied in arguing for his release on parole. It was evident, already at that time, that his treatment as an “alien” (as defined by the Citizenship Act) who was detained and serving a sentence in SA, might have a favourable effect on his judicial destiny.
The word “may” is the most significant word underpinning the empowering provisions that allow for the deprivation of citizenship. Discretion must be applied, striking a careful balance between contrasting interests and rights. Gigaba’s decision to revoke Walus’s citizenship was clearly not based only on the fact that it was lawful. By contrast, Schreiber was obliged by law to deport Walus. Ironically, had Walus remained a dual Polish and SA national there would have been no immediate obligation for Schreiber and his department to do so on the conclusion of his parole period.
It was Gigaba’s decision, which came 17 years after the commutation of the original death sentence and 24 years after the initial conviction, that should be seen as reckless in the eyes of those who are now aghast at Walus’s swift deportation — the ANC included.
Gigaba’s vexed discretion in the application of the legislative and statutory scheme surrounding citizenship has been subject to considerable subsequent investigation, including during the Zondo state capture inquiry. However, in this context the cautionary tale for Schreiber is that when dealing with deprivation of citizenship what is lawful is not always what is just.
Concurrently with these events, Schreiber has been dealing with other well-known cases concerning the revocation of SA citizenship, and of identity custodianship with opposing interests, including the issues surrounding the Gupta family.
Home affairs minister Leon Schreiber. File photo: FREDDY MAVUNDA/BUSINESS DAY
On November 24 the minister confirmed the revocation of Ajay Gupta’s son’s citizenship. There are also a myriad cases (many yet to be uncovered) of young people who have been registered as SA citizens at birth, either in error or by fraud and misrepresentation.
These individuals — former Miss SA contestant Chidimma Adetshina is a prominent example — may find themselves stripped of a citizenship they genuinely believed was their right, even though they played no role in obtaining it at birth or as minors.
Contrary to what has been reported, such cases have nothing to do with a deprivation of citizenship in terms of the Citizenship Act but are rather related to the rectification/erasure of the records in the National Population Register, in fulfilment of the department’s mandate of custodianship. This process leaves the individual no immediate recourse — their SA identity can be purged overnight without any direct wrongdoing.
Throughout the failed lengthy endeavours to extradite the Guptas from the United Arab Emirates wrangling over their deprivation of SA citizenship continued. This has since been disabled with the confirmation in May 2023 by the Vanuatu Citizenship Commission that Atul and Rajesh Gupta had acquired Vanuatu citizenship.
This was just weeks before the Supreme Court of Appeal handed down judgment on the constitutional invalidity of section 6(1)(a) of the Citizenship Act, which provides for the automatic loss of SA citizenship. In simple terms this is an automatic loss by uninformed omission of an action. On November 5 the Constitutional Court reserved its judgment on the issue, but in terms of the legislation as it stands the Gupta brothers already automatically ceased to be SA citizens in 2023.
To avoid becoming another cautionary tale to future generations, Schreiber will have to exercise the necessary caution and make informed decisions surrounding the complex and delicate topic of citizenship. He certainly has his work cut out for him.
• Pizzocri is CEO at citizenship and immigration law firm Eisenberg & Associates.
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.
CLAUDIA PIZZOCRI: Revocation and loss of citizenship is a painful double-edged sword
Home affairs minister needs to make informed decisions surrounding complex topic of citizenship
The right to a nationality is enshrined in article 15 of the Universal Declaration of Human Rights and recognised in many other international and regional human rights instruments.
Under international law depriving someone of their nationality is only permitted under narrow circumstances. In most countries and jurisdictions the minimum requirements are that there must be a legal basis, doing so must serve a legitimate purpose and the process must be proportionate, adequate and necessary.
In line with international standards, section 20 of the SA constitution states that “no citizen may be deprived of citizenship”, and the SA Citizenship Act provides the legislative framework within which to uphold this right, including the so-called “special circumstances” under which SA citizenship can be revoked by ministerial order, on the proviso that nobody may be rendered stateless by this action.
Section 8(2) of the act contemplates deprivation when the citizen is also a citizen of another country, if the home affairs minister is “satisfied that (a) such citizen has at any time been sentenced in any country to a period of imprisonment of not less than 12 months for any offence which, if it was committed outside the republic, would also have constituted an offence in the republic; or (b) that it is in the public interest.”
Painful injustice
On December 6, before wrapping up the year and his first semester as home affairs minister, among numerous upbeat media statements, social media posts and even celebratory dances lauding the progress made by his TeamHomeAffairs, the DA’s Leon Schreiber released a statement announcing the deportation of Janusz Walus, the Polish extremist who served a long prison sentence for assassinating Chris Hani.
News of the deportation sparked immediate controversy. For Hani’s widow, his family and all other parties that had for years fiercely opposed his release on parole, it was a painful injustice carried out in the name of the rule of law.
EDITORIAL: Good riddance to Walus
The ANC soon joined the outcry, opposing the deportation on the basis that it should have not been permitted without a full confession from Walus. ANC secretary-general Fikile Mbalula said Walus owed South Africans an explanation as the party believed there was a wider conspiracy to murder Hani.
Schreiber clarified that Walus’s immediate deportation was due to his illegal immigration status and the conclusion of his two-year parole period, noting that “the department of home affairs comes in at the end of this particular process”. Striking a reasonable balance in the controversy, Schreiber described it as “a painful day for SA”, adding: “Probably the only thing worse than having him a free man in Poland is him being a free man illegally in SA”.
Crucial to this outcome was the revocation of Walus’s SA citizenship in 2017 by then ANC home affairs minister Malusi Gigaba, upon which Walus’s defence relied in arguing for his release on parole. It was evident, already at that time, that his treatment as an “alien” (as defined by the Citizenship Act) who was detained and serving a sentence in SA, might have a favourable effect on his judicial destiny.
The word “may” is the most significant word underpinning the empowering provisions that allow for the deprivation of citizenship. Discretion must be applied, striking a careful balance between contrasting interests and rights. Gigaba’s decision to revoke Walus’s citizenship was clearly not based only on the fact that it was lawful. By contrast, Schreiber was obliged by law to deport Walus. Ironically, had Walus remained a dual Polish and SA national there would have been no immediate obligation for Schreiber and his department to do so on the conclusion of his parole period.
It was Gigaba’s decision, which came 17 years after the commutation of the original death sentence and 24 years after the initial conviction, that should be seen as reckless in the eyes of those who are now aghast at Walus’s swift deportation — the ANC included.
Gigaba’s vexed discretion in the application of the legislative and statutory scheme surrounding citizenship has been subject to considerable subsequent investigation, including during the Zondo state capture inquiry. However, in this context the cautionary tale for Schreiber is that when dealing with deprivation of citizenship what is lawful is not always what is just.
Concurrently with these events, Schreiber has been dealing with other well-known cases concerning the revocation of SA citizenship, and of identity custodianship with opposing interests, including the issues surrounding the Gupta family.
On November 24 the minister confirmed the revocation of Ajay Gupta’s son’s citizenship. There are also a myriad cases (many yet to be uncovered) of young people who have been registered as SA citizens at birth, either in error or by fraud and misrepresentation.
These individuals — former Miss SA contestant Chidimma Adetshina is a prominent example — may find themselves stripped of a citizenship they genuinely believed was their right, even though they played no role in obtaining it at birth or as minors.
Contrary to what has been reported, such cases have nothing to do with a deprivation of citizenship in terms of the Citizenship Act but are rather related to the rectification/erasure of the records in the National Population Register, in fulfilment of the department’s mandate of custodianship. This process leaves the individual no immediate recourse — their SA identity can be purged overnight without any direct wrongdoing.
Throughout the failed lengthy endeavours to extradite the Guptas from the United Arab Emirates wrangling over their deprivation of SA citizenship continued. This has since been disabled with the confirmation in May 2023 by the Vanuatu Citizenship Commission that Atul and Rajesh Gupta had acquired Vanuatu citizenship.
This was just weeks before the Supreme Court of Appeal handed down judgment on the constitutional invalidity of section 6(1)(a) of the Citizenship Act, which provides for the automatic loss of SA citizenship. In simple terms this is an automatic loss by uninformed omission of an action. On November 5 the Constitutional Court reserved its judgment on the issue, but in terms of the legislation as it stands the Gupta brothers already automatically ceased to be SA citizens in 2023.
To avoid becoming another cautionary tale to future generations, Schreiber will have to exercise the necessary caution and make informed decisions surrounding the complex and delicate topic of citizenship. He certainly has his work cut out for him.
• Pizzocri is CEO at citizenship and immigration law firm Eisenberg & Associates.
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