South Africa: Yamikani Vusi Chisuse and Others v Director-General, Department of Home Affairs and Another
Source: South African Constitutional Court
Extracts from media summary:
On Wednesday, 22 July 2020 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared section 2(1)(a) and (b) of the South African Citizenship Act 88 of 1995, as amended by the South African Citizenship Amendment Act 17 of 2010 (amended Citizenship Act) unconstitutional and invalid. The central question before the Constitutional Court was whether the impugned provisions are, indeed, unconstitutional and therefore whether the order of invalidity should be confirmed.
The applicants are persons born outside of South Africa to a South African parent before 1 January 2013, which was when the South African Citizenship Amendment Act 17 of 2010 (2010 Amendment) came into effect. The first respondent is the Director-General of the Department of Home Affairs – the functionary responsible for registering births, entering people onto the population register and assigning identity numbers and issuing identity documents. The second respondent is the Minister of Home Affairs: the member of the Executive responsible for the administration of citizenship legislation.
In respect of section 2(1)(b), the Constitutional Court held that the purposive interpretation of the words “who is born” is one which applies to those born both before and after the commencement of the 2010 Amendment. The Court held that the parties were mistaken in interpreting the words as being prospective only. The words describe a state of being and the word “is” is used in this context as a linking verb. The Constitutional Court found that this is not only a reasonable and grammatically-sound construction of the phrase, but also a more constitutionally compliant one than that which gives the word “is” a narrow interpretation. In light of this conclusion, the Constitutional Court held that four of the applicants, and those similarly placed, would now fall within the ambit of section 2(1)(b), as they were all born to a South African parent.
The Constitutional Court concluded that this reading of the section would accommodate all categories of citizens who had acquired citizenship through either birth or descent in terms of the previous Citizenship Act. As a result, section 2(1)(a) and (b) was found to be capable of being read in a constitutionally compliant manner and, therefore, the confirmation of the order of invalidity by the High Court was declined. As the applicants fell within section 2(1)(b), however, the Constitutional Court upheld the declaratory order of the High Court which declared that four of the applicants are South African citizens. Finally, the Constitutional Court held that the interests of justice dictate that the applicants’ prayer for consequential relief be granted and that the Department of Home must issue the applicants birth certificates and assign them South African identity numbers.
Download media summary: Chisuse and Others v DHA Judgment CCT 155-19 media summary
Download full judgment: Chisuse and Others v DHA Judgment CCT 155-19
Other documents in the case available at Constitutional Court website: