Unconstitutional loss of citizenship

I refer to the recent Supreme Court of Appeal judgment, Democratic Alliance v Minister of Home Affairs and Another (SCA) (unreported case no 67/2022, 13-6-2023) (Zondi JA (Schippers and Matojane JJA and Kathree-Setiloane and Unterhalter AJJA concurring)), wherein it was held that it is indeed unconstitutional should South Africans without first obtaining prior permission from the Minister of Home Affairs be stripped of their citizenship.

The year 1994 heralded a new beginning for South Africa and thankfully we thereafter obtained an exceedingly progressive Constitution. In fact, to counter past imbalances various measures were enacted.

It is truly amazing how it took so long for the requisite section of the South African Citizenship Act 88 of 1995 to be challenged. Logically, just because I decide tomorrow to acquire Japanese citizenship does not mean I have decided to renounce my South African citizenship.

Furthermore, there is no clear criterion as to how exactly citizens who acquire foreign citizenship should lose their South African citizenship. For example, does it apply only to citizens who acquire foreign citizenship by naturalisation only?

What happens in the case of citizens who are deemed citizens of foreign countries automatically by the laws of the said foreign country?

In addition, there is unfair differentiation between South African citizens by birth and South African citizens by naturalisation. The former, even if they lose their citizenship still maintain the right to remain in the country. Does this mean a South African citizen by naturalisation who has lived here for over 30 years must be deported after acquiring foreign citizenship without the requisite permission of the Minister?

This is an old Apartheid relic law whose purpose was to deprive freedom fighters of their nationality. So, it begs the question why would a government, which believes in human rights, and many of its members who suffered for freedom oppose the move to declare the said law unconstitutional?

I sincerely believe, we, members of the legal profession should not keep silent about blatantly unreasonable legislation.

Siyabonga Mkhize LLB (Unisa)
 is a legal practitioner in Johannesburg.

This article was first published in De Rebus in 2023 (Nov) DR 4.