South Africa: Chisuse and Others v Director-General, Department of Home Affairs and Another

Published: 13/Feb/2020
Source: Constitutional Court of South Africa

Case Number: CCT155/19
Hearing Date: 13 February 2020
[judgment reserved]


The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday, 13 February 2020 at 10h00, the Constitutional Court will hear an application for the confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria (High Court).  The High Court declared sections 2(1)(a) and (b) of the South African Citizenship Act 88 of 1995 as amended (the 1995 Act) unconstitutional and invalid to the extent that it fails to recognise citizenship acquired by descent in terms of the previous legislation, before the date of commencement of the current South African Citizenship Amendment Act 17 of 2010 (the current Act) on 1 January 2013.

South Africa has had a number of citizenship legislation, and each has imposed different legal implications.  In terms of the South African Citizenship Act 44 of 1949 (the 1949 Act) a child born outside South Africa acquired citizenship if the child’s father was a South African citizen.  If the child’s parents were not married, the child acquired citizenship if the mother was a South African citizen.  The South African Citizenship Amendment Act 70 of 1991 (the 1991 Amendment Act) to the 1949 Act stipulated that any person born outside South Africa after 1949 to a South African parent, whether or not the parents were married, and who subsequently registers their birth, is a South African citizen.  This was referred to as citizenship “by descent”.  The 1995 Act preserved the citizenship of anyone who was a citizen by descent before it came into force.  In terms of the 1995 Act, citizenship by descent was acquired only after registration of birth, but registration could be done at a later stage.  The 1995 Act was then amended by the current Act which came into effect on 1 January 2013 and which is the subject of this application before the Constitutional Court.  In terms of the current Act, registration is no longer a requirement to acquire citizenship.

The applicants are a group of individuals who were each born outside of South Africa to a South African parent before the impugned current Act came into force.  At the time the current Act came into effect, they had yet to register their births in terms of previous legislation.  The applicants claim that the provisions of section 2(1) of the current Act deprive them of their citizenship.  The first respondent is the Director-General for the Department of Home Affairs, the functionary responsible for registering births, entering people onto the population register and assigning identity numbers.  The second respondent is the Minister of Home Affairs, the member of the Executive responsible for the administration of the relevant statutes in these proceedings.

On 23 September 2016, the applicants filed an application before the High Court requesting that an order be made to the effect that the impugned provisions be declared unconstitutional and invalid for depriving the applicants and other people in a similar situation of their citizenship and that a reading-in be made to cure the constitutional defect.  The matter was due to be heard by the High Court on 9 May 2017.  The respondents had not filed an answering affidavit and the High Court postponed the application and ordered the respondents to serve and file an affidavit within twenty days from the issuing of the order.  The respondents failed to submit the affidavit as required.  Two years later, the application was finally set down for hearing on 22 May 2019.  On the day of the hearing, the respondents’ request for a postponement to file the belated affidavit was refused and the High Court heard the application unopposed.  The High Court declared sections 2(1)(a) and (b) of the current Act unconstitutional and remedied the subsections through a reading-in of the words “or by descent” and “or was” respectively, to cater for citizenship acquired by descent in terms of the 1995 Act.  The High Court also made a declaratory order that four of the applicants are South African citizens and issued further directions to the first respondent.

Before the Constitutional Court, the applicants rely on the submissions made in the High Court, alleging and challenging the constitutional defects of section 2(1) of the current Act.  They argue that section 2(1)(a) of the current Act is unconstitutional since it does not make provision for citizenship by descent which automatically deprives those who acquired citizenship by descent, in terms of the previous legislation, of their citizenship.  The applicants also argue that section 2(1)(b) is unconstitutional in that its prospective effect amounts to a deprivation of their vested right and ability to acquire citizenship rights, which the applicants allege is protected by the Constitution.  They argue that the impugned provisions are in effect contrary to sections 3 and 20 of the Constitution.

The respondents submit that the order made by the High Court is not just and equitable, as contemplated in the Constitution.  The respondents argue that sections 3 and 20 of the Constitution are not infringed as the applicants did not have a constitutionally protected vested right to citizenship.  Further, the applicants’ failure to register their births in terms of the previous Act precluded them from enjoying the rights, benefits and privileges of citizenship.  The respondents contend that even if the applicants’ rights to acquire citizenship in terms of the previous legislation are protected by the Constitution, the limitation imposed by the current Act is reasonable and justifiable under section 36 of the Constitution.  The respondents also apply for condonation for the late filing of their notice to oppose the confirmation of the order of constitutional invalidity in this Court and for their failure to file their answering affidavit in the High Court.  They request that the Court orders the remittal of the matter to the High Court to hear oral evidence for the determination of the material dispute of facts.  In the alternative, the respondents request that Parliament be given the opportunity to amend the current legislation after its due consideration of the matter.

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Themes: Acquisition of nationality, Acquisition by children, Discrimination, Gender
Regions: South Africa
Year: 2020