Constitutional Court of South Africa declines confirming High Court orders invalidating Citizenship Amendment Act, 2010

Constitutional Court of South Africa: 9-Judge Bench of the Constitutional Court unanimously decided upon the constitutional validity of Section 2(1) of the amended South African Citizenship Amendment Act, 2010. The Court did not uphold the order passed by the High Court of South Africa, Gauteng Division, Pretoria, which declared Section 2(1) of the amended Citizenship Act as unconstitutional and invalid.

The five applicants of the present case, all of whom provided evidence before the court that at least one of their parents was a South African citizen at the time of birth, had approached the High Court in October 2016 and pleaded that an order be made declaring Section 2(1)(a) and (b) of the amended Citizenship Act as constitutionally invalid. Section 2 read that- “(1) Any person— (a)  who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010 [i.e. 1 January 2013], was a South African citizen by birth or by descent; or (b)  who is born or was born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth.” As alleged by them, this amended section carried various constitutional infringements. The first was that this section did not include a provision to retain the citizenship of those who came under Section 13 of the Births and Death Registration Act, 1992 which stated that if a child of a South African citizen is born outside the Republic, then they are eligible to attain citizenship. The applicants made the case that this amended section will effectively strip these citizens of their South African citizenship. The applicants had also pleaded that they be declared as South African citizens and the amended section be struck down as invalid.

The High court upheld their plea of unconstitutionality and granted them their relief with the exception of the 2nd applicant as there was insufficient information. The Constitutional Court now heard an application for confirming the order of constitutional invalidity granted by the High Court.

In its Judgment, the Court noted that while there is no express constitutional provision requiring Judges to furnish reasons for their decisions, reasoning is nevertheless an important duty and vital towards establishing legitimacy of the judiciary. The High Court in its judgement had not provided any coherent reasons for its decision and merely approved the draft order of the applicants. With this the Court goes into a detailed discussion of the history of South African citizenship starting from the 1949 Citizenship Act. The Court laid special emphasis on the fact that legal statutory provisions must be read in their ordinary understanding without resorting to philosophical and intended meanings. Further, Judges must adhere to a purposive understanding of statutes in the sense that they construe them in a way that gives effect to the core values enshrined in the Constitution. The Court addressed the first issue of- who was a South African citizen by birth? As per Section 2(1)(a) of the amended Citizenship Act, all those who fell within this definition on 31 December 2012 would remain citizens by birth in terms of the amended Citizenship Act but this in turn deprives and excludes those who acquired citizenship differently. The inconsistency that arose is that through the 2010 Amendment, the meaning of  “citizen by descent” has been drastically modified to even include those who have been adopted in terms of the Children’s Act, 2005 by a South African citizen but at the same time appears to remove the previous concept of citizenship “by descent” altogether. It was noted that it is illogical why a legislation would provide for citizenship by birth for children of foreign nationals while not providing for those who had previously been born to South African parents even though it was about the Republic. This brought into question the intended meaning of Section 2(1)(b).

The Court held that retrospective application cannot be simply implied unless it is explicitly stated and hence the usage of the word “is” in the aforementioned section might suggest a narrow, prospective-only interpretation that strips citizenship rights from a great number of people in the most unfair and unjustified manner. At the same time, a word such as “is” is capable of bearing a meaning that applies both to those born before and after the commencement of the 2010 Amendment because it refers to a state of existence, and does not define at what point does that existence arise.

Moreover, as discussed above, the Court bears a burden to arrive at an understanding that is constitutionally compliant and must promote rights rather than limit them. With this, the Court agreed the proper way to read Section 2(1)(b) was that “any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen” mean a person who is a child of a South African citizen, regardless of when that person is born or whether that person is born inside or outside the Republic. This in turn also validated the current wordings of Section 2(1)(a) to include persons born even outside the Republic. The Court therefore did not confirm the findings of the High Court that declared the amendment as invalid and upheld its constitutionality. [Chisuse v. Director-General, Department of Home Affairs, [2020] ZACC 20, decided on 22-07-2020]

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