CONSTITUTIONAL COURT OF SOUTH AFRICA


CCT 184/23

In the matter between:


DEMOCRATIC ALLIANCE Applicant

and

MINISTER OF HOME AFFAIRS First Respondent

DIRECTOR‑ GENERAL , DEPARTMENT
OF HOME AFFAIRS Second Respondent

and

STEVEN SPADIJER Amicus Curiae



Neutral citation: Democratic Alliance v Minister of Home Affairs and Another
[2025] ZACC 8

Coram: Maya CJ, Madlanga ADCJ , Majiedt J, Mhlantla J, Seegobin AJ,
Theron J, Tolmay AJ and Tshiqi J

Judgment : Majiedt J (unanimous )

Heard on: 05 November 2024

Decided on: 06 May 2025

Summary: Citizenship Act 88 of 1995 — confirmation application —
constitutionality of section 6(1)(a) — loss of citizenship — order
of constitutional invalidity confirmed

ORDER



On application for confirmation of an order of constitutional invalidity granted by the
Supreme Court of Appeal :
1. The order of constitutional invalidity of the Supreme Court of Appeal is
confirmed.
2. It is declared that section 6(1)(a) of the South African Citizenship Act 88
of 1995 is inconsistent with the Constitution and is invalid from its
promulgation on 6 October 1995.
3. It is further declared that those citizens who lost their cit izenship by
operation of section 6(1)(a) of the South African Citizenship Act 88
of 1995 are deemed not to have lost their citizenship .
4. The respondents are ordered to pay the applicant ’s costs in this Court,
including the costs of two counsel where so employed.



JUDGMENT




MAJIEDT J (Maya CJ, Madlanga ADCJ , Mhlantla J, Seegobin AJ, Theron J,
Tolmay AJ and Tshiqi J concurring ):


Introduction
[1] In Chisuse ,1 this Court observed that “[c]itizenship is the gateway through which
a number of rights in the Constitution can be accessed. It enables a person to enjoy

1 Chisuse v Director -General of Home Affairs [2020] ZACC 20 ; 2020 (6) SA 14 (CC); 2020 (10) BCLR 1173
(CC).
MAJIEDT J
3 freedom of movement , freedom of trade , and political representation .”2 This case
concerns a constitutional challenge against section 6(1)(a ) (the impugned provision ) of
the South African Citizenship Act3 (the Act). That provision causes South African
citizens to lose their citizenship automatically if they voluntarily acquire citizenship in
another country , unless they have prior permission from the Minister of Home Affairs.
In relevant part , the impugned provision reads:

“(1) Subject to the provisions of subsection (2), a South African citizen shall cease
to be a South African citizen if —
(a) [that citize n], whilst not being a minor , by some voluntary and formal
act other than marriage , acquires the citizenship or nationality of a
country other than the Republic . . .
. . .
(2) Any person referred to in subsection (1) may , prior to [their] loss of
South African citizenship in terms of this section , apply to the Minister to
retain [their] South African citizenship , and the Minister may , if [they] deem it
fit, order such retention .”

[2] The Supreme Court of Appeal declared the impugned provision constitutionally
invalid from the date of its promulgation on 6 October 1995.4 That Court made an
ancillary order declaring that those citizens who had lost their citizenship by virtue of
that section , are deemed not to have lost their citizenship. Last ly, it made a costs order
against the respondents. The matter is before this Court for confirmation of the order
of constitutional invalidity , in terms of section 167(5), read with section 172(2)(a) of
the Constitution , and further read with rule 16 of this Court ’s Rules. Although the
respondents abide the decision of this Court , we are obliged to consider the
constitutional ity of the section to assess whether the declaration of invalidity must be
confirmed .5

2 Id at para 24.
3 88 of 1995.
4 Democratic Alliance v Minister of Home Affairs [2023] ZASCA 97; 2023 (6) SA 156 (SCA) (Supreme Court of
Appeal judgment).
5 Phillips v Director of Public Prosecutions [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC) at
para 8.
MAJIEDT J
4
[3] The applicant is the Democratic Alliance (D A) and the first and second
respondents are the Minister and Director ‑General of Home Affairs respectively
(collectively , the Department) . Dr Steven Spadijer (Dr Spadijer ) was admitted as
amicus curiae (friend of the court) , and was confined to m aking written submissions.
Dr Spadijer holds dual citizenship of Australia and Montenegro. He worked as a
barrister in Australia before continuing his studies in the U nited Kingdom where he
obtained postgraduate qualifications in law. Dr Spadijer explains tha t he has , under
Article 150 of the Montenegrin Constitution , referred a question regarding the
constitutionality of Article 24(1) of the Montenegrin Citizenship Act, which imposes
an automatic ban on dual citizenship , to the Montenegrin Constitutional Cour t. That
referral deals comprehensively with foreign and international human rights law relating
to citizenship.

[4] Dr Spadijer says that his referral to the Montenegrin Constitutional Court is a
comprehensive assessment of relevant international and foreign legal principles and it
would be of assistance to this Court in its determination of the D A’s application for
confirmation. His amicus application , ultimately , seeks to place the months of research
and work that went into his Montenegrin Constitutional Court referral before this Court
for its consideration , should those submissions be of any assistance. His written
submissions cover two central topics:
(a) first, foreign and international legal principles as they relate to dual
citizenships , including the number of states that allow dual citizenship ,
foreign jurisdictions that have struck down prohibitions on dual
citizenships , and international human rights implications for prohibitions
on dual citizenships; and
(b) second , the South African human rights implications of the impugned
provision . The submissions consider how the impugned provision limits ,
among others , the rights in sections 9, 10, and 33 of the Constitution.

MAJIEDT J
5 [5] The DA launched an application in the High Court of South Africa, Ga uteng
Division , Pretoria (High Court) in which it sought , broadly , the relief eventually granted
in the Supreme Court of Appeal. It sought a further order consequential to the
declaration of invalidity “declaring that all persons [who had lost their citiz enship
through the operation of the impugned provision ] may apply to the [Minister] in terms
of section 15 of the Act for the appropriate certificate of citizenship ”.

[6] The High Court dismissed the application with no order as to costs. It held that
the impugned provision is not irrational and thus does not offend the principle of legality
nor does it infringe any constitutional rights.6 On appeal to it , with its leave , the
Supr eme Court of Appeal upheld the appeal and , as stated , made a declaration of
constitutional invalidity and granted the further orders.

Litigation history
[7] In the High Court , the DA brought the application on behalf of South Africans
who, unbeknown to them and to their surprise , had lost their citizenship through the
operation of the impugned provision . To illustrat e the effect of that section , the DA
filed an affidavit by Mr Phillip Plaatj es, a chartered accountant who was born in
Cape Town and who had lost his South African citizenship in this fashion.

[8] Mr Plaatj es states that he was born and raised in Cape Town and left after
qualifying as a chartered accountant in November 2002 . He started work ing as an
English teacher in South Korea in March 2003. According to Mr Plaatj es, his departure
was never meant to be permanent , but while in South Korea he met Ms Karen Crouch ,
a British citizen , with whom he subsequently fell in love . They got married on
27 February 2004 , and settle d in the United Kingdom after Mr Plaatj es obtained work
there and acquired a work visa.


6 Democratic Alliance v Minister of Home Affairs [2021] ZAGPPHC 500 (High Court judgment).
MAJIEDT J
6 [9] Mr Plaatj es was naturalised as a citizen of the United Kingdom on
19 November 2007 and received his British passport in December 2007 . Mr Plaatj es
says that d uring this period he was under the impression that he would obtain citizenship
as a consequence of marrying a citizen of another country , thereby acquiring “dual
citizenship ”. He last renewed his South African passpo rt in London in July 2005 , long
before he had acquired the equivalence to permanent residency , had been naturalised as
a citizen , and had received his British passport.

[10] In the period between December 2007 and July 2014 , Mr Plaatj es had travelled
a number of times to South Africa , using his South African passport. According to
Mr Plaatj es no one at immigration had , during this time , enquired whether he had a
second citizenship , even whe n he travelled with his wife and two daughters , all who
had British cit izenship by way of birth. Seven years after obtaining his British
citizenship he came across an article online which explained the true state of affairs –
that South African citizens stand to lose their citizenship where they voluntarily acquire
citizensh ip of another country. Only then did Mr Plaatj es become aware that he did not
in fact acquire British citizenship by marriage and , in fact , could not have done so in
the first place. Upon further investigation , he discovered many more people in the same
situation , also as shocked and confused as he was concerning dual citizenship.

[11] On 20 July 2015 , the expiry date of his South African passport , Mr Plaatj es went
to the South African embassy in London , requesting a determination of his citizenship.
He did so because , as a member of the South African Institute of
Chartered Accountants , integrity is an important part of his profession. Mr Plaatjes says
he received his passport back , cut at the corners , with the words “cancelled ” stamped
across the pages , as well as a letter stating that he committed a voluntary act which
resulted in the automatic loss of his South African citizenship but that he would ,
however , remain a permanent resident of South Africa. This, he says , was one of the
saddest days of his life as he was desirous of retaining his South African citizenship.

MAJIEDT J
7 [12] The DA contends that it brought its application in defence of the many
South Africans living abroad who have acquired a second citizenship in good fait h and
who, like Mr Plaatj es, have been stripped of their citizenship automatically by operation
of law. The DA says the application was brought in the public interest. It states that
this automatic loss of citizenship occurred without the knowledge of th ese persons and ,
on the probabilities , also even without the knowledge of the Department of
Home Affairs.

[13] The thrust of the DA ’s case in the High Court was that the impugned provision
deprives citizens of their citizenship , thus violating the right to cit izenship enshrined in
section 20 of both the Constitution and interim Constitution. Furthermore , the section
does so without affording citizens prior n otice , without a justifiable reason and without
any person having taken a decision to deprive them of th at right.

[14] The respondents opposed the application. They denied that the impugned
provision is unconstitutional and contended that the DA misconstrued the section
because they failed to read that section alongside section 6(2). They contended that the
loss of citizenship under the impugned provision occurs as a result of a voluntary act on
the part of the citizen , not the s tate, and that section 6(2) enables a South African citizen
to retain citizenship on application to the Minister. The respondents als o argued that
the state has a right to regulate the process by which citizenship is acquired and lost ,
including that of dual citizenship. The Act provides a mechanism by which a citizen
can seek permission to hold dual citizenship and so , failing that , the loss of citizenship
cannot be said to be effected on a legal framework that is irrational and unconstitutional.

[15] The High Court dismissed the DA ’s application and rejected its argument that
the impugned provision is irrational because :
(a) it serves a leg itimate government purpose , namely the s tate’s interest in
regulating and managing citizenship , given its connection to the work of
government which , in turn , requires a connection between citizen and
country; and
MAJIEDT J
8 (b) it is only where a person through a volunt ary and formal act acquires
citizenship of another country , and does not thereafter avail themselves
of the right to approach the Minister for permission to retain their
South African citizenship , that their citizenship is lost.

[16] The High Court held that w hat was before it in the proceedings was not a
deprivation of citizenship , but a loss of citizenship , which the High Court reasoned are
two completely different concepts . That Court referred to the Constitution wh ich in
section 3 expressly recognises that citizenship may be lost and , in subsection 3, states
that legislation must provide for the acquisition , loss, and restoration of citizenship.
Section 20, on the other hand , contains a prohibition against the deprivation of
citizenship. The High Court fu rther reasoned that , while deprivation of citizenship may
lead to statelessness , the loss of citizenship carries no such risk as the condition that
must be met for the loss of citizenship to occur is the acquisition of citizenship of
another country. Thus , when section 20 of the Constitution is compared to section 6 of
the Act, it is plain that at the core of section 20 is the right against statelessness , while
the loss of citizenship in terms of section 6 carries no risk of statelessness as citizenship
would only be lost where citizenship of another country had been acquired.

[17] The High Court then had regard to the impugned provision , read with
section 6(2), and held that , when read together , they serve to inform citizens about the
consequences of volunta rily acquiring citizenship in another country and provide a way
for citizens to seek permission to retain their South African citizenship after obtaining
other citizenship. The High Court laid emphasis on the voluntary and formal nature of
the acquisition of citizenship of another country.7 In this context , the High Court held
that the loss was not automatic , as the DA argued , but was more accurately described
as being effected by operation of law following clearly defined voluntary conduct on
the part of the citizen , as well as a formal act.


7 The High Court stated that this could relate to “the taking of an oath of allegiance, a formal swearing in ceremony,
the issue of a citizenship certificate or some si milar act in recognition of the acquisition of citizenship”.
MAJIEDT J
9 [18] The High Court reasoned that in law , every South African citizen who wishes to
acquire the citizenship of another country has a number of choices :
(a) Mindful of the consequences of acquiring another citizenship they may
opt to nevertheless do so and may elect not to retain their South African
citizenship.
(b) They may wish to retain their South African citizenship together with the
citizenship of another cou ntry. In these situations , they will have the right
to apply for permission to do so before a cquiring the other citizenship.
(c) If permission is granted , they may then proceed to obtain the other
citize nship and hold dual citizenship.
(d) If permission is refused and subject to their right to challenge such refusal ,
they can then elect whether to proceed to obtain another citizenship with
the knowledge that they will lose their South African citizenship , or they
can elect to retain their South African citiz enship and not seek the
citizenship of another country.

According to the High Court , if these citizens claim to have been unaware of these
options , or argue that the provision is unclear , their lack of knowledge about the law
cannot be used to support the argument that the provision is unconstitutional.

[19] In relation to the argument that other rights were unjustifiably limited , the
High Court held that , to the extent that certain rights can only be exercised by citizens ,
the loss of citizenship is not a lim itation on the exercise of such rights but rather the
consequence of no longer enjoying the status of a citizen. The High Court reasoned that
the loss of citizenship is clearly a part of the constitutional design of the overall idea of
citizenship , and th e language of the C onstitution distinguishes loss , renunciation and
restoration of citizenship as different features of citizenship , and mandates that there
shall be national legislation to pro vide for this. The Act is this envisioned legislation ,
providi ng for the constitutionally mandated regulation of loss , renunciation and
restoration of citizenship. Thus , to the extent that it could be said that the impugned
provision results in a limitation of any rights , that is a limitation permitted by the terms
MAJIEDT J
10 of the Constitution. The High Court thus dismissed the application , but made no order
as to costs.

[20] The Supreme Court of Appeal granted leave to appeal to it and upheld the
appeal. It held that , to meet the standard of rationality , the Minister was required , in the
first place , to explain the specific and legitimate purpose that the impugned provision
was designed to foster. In the absence of specified reasons , the Court held that the
impugned provision is arbitrary and irrational. The Court held that there is no rationale
for why an individual adult citizen who applies for citizenship of another country must ,
by operation of law , lose their South African citizenship. Rationality is tested against
substantively legitimate objects and not by saying that , because the power may be one
that the s tate could exercise legitimately , its existence makes its exercise legitimate. It
held further that the impugned provision is irrational , because it treats South African
citizens who already h ave dual citizenship differently from those who intend to acquire
citizenship or nationality of another country.

[21] The Supreme Court of Appeal further held that the purpose of the impugned
provision cannot be to regulate the renunciation of citizenship , for that would render
section 7 of the Act , which expressly deals with renunciation , nugatory . Section 7(1)
permits a South African citizen “who intends to accept the citizenship or nationality of
another country , or who also has the citizenship or nationali ty of a country other than
the Republic ”, to renounce their South African citizenship. Moreover , said that Court ,
section 8(2) expressly recognises dual citizenship and nationality of another country ,
where it provides that the Minister may by order depri ve a South African of citizenship
or nationality of another country , if they have been sentenced to a certain period of
imprisonment , or if it is in the public interest to do so.

[22] Finally , the Supreme Court of Appeal held that the impugned provision
unjust ifiably limits political rights , the right to enter and remain in the Republic , and
the right to freedom of trade , occupation and profession , guaranteed by the Constitution
and it declared the section inconsistent with the Constitution .
MAJIEDT J
11
[23] Before us , the DA presented argument similar to that advanced in the previous
Courts :
(a) the impugned provision infringes the right to citizenship contained in
section 20 of both the Constitution and interim Constitution , as it deprives
persons , without their consent o r forewarning , of their South African
citizenship;
(b) that deprivation lacks any legitimate government purpose to render it
rational ;
(c) contrary to the initial contention by the respondents that the impugned
provision exists to allow citizens to give up their c itizenship , it is actually
section 7 of the Act that provides this function ;
(d) the impugned provision cannot be justified by reference to the discretion
granted to the Minister under section 6(2) of the Act;
(e) as the impugned provision is irrational , it cannot be justified under
section 36 of the Constitution and fall s to be declared to be invalid; and
(f) there is common ground between the parties that there is no need for the
suspension or limitation of the retrospectivity of the declarations of
invalidity.

[24] As stated , the Department abides this Court ’s decision and state s that their
submissions had been filed to assist this Court in the interpretation of the impugned
provision. Nonetheless , in the written submissions before this Court the Department
supported t he approach , interpretation and conclusion s of the High Court , but at the
hearing no further submissions were made in this respect.

MAJIEDT J
12 Analysis
[25] The crucial importance of citizenship has been noted.8 An oft quoted truism is
that every person has “a right to have rights ”. In her seminal work , Arendt persuasively
argues that this “right to have rights ” emanates from citizenship and belonging to a
distinct national community .9 Citizenship has been described as a revered and
“cherished status ” and the right to citizenship has been said by the US Supreme Court
to be “the most precious of all ”.10 It is a right of which one should not be lightly
deprived.11 The stark reality of the impugn ed provision is that the loss of citizenship
occurs automatically without the knowledge , consent and any input of the citizen
concerned. That legal position must be assessed against the backdrop of the provisions
in the Constitution that deal with citizenship.

[26] Section 3 of the Constitution is headed “Citizenship ”. It reads:

“(1) There is a common South African citizenship.
(2) All citizens are —
(a) equally entitled to the rights , privileges and benefits of citizenship; and
(b) equally subject to the duties and responsibilities of citizenship.

8 Chisuse above n 1. See also , further afield, Alvin Teage Jalloh v Olubankie King -Akerele et al Petition In Re:
Constitutionality of Sections 22.1 and 22.2 of the Aliens and Nationality Law Supreme Court of the Republic of
Liberia (23 December 2019) at 7: “Once acquired, citizenship is the pillar that secures all other rights and
privileges Liberians enjoy, including the right to life and the right to own real property, etc .”; R (Johnson) v
Secretary of State for the Home Department [2016] UKSC 56 at para 2: “There are many benefits to being a
British citizen, among them the right to vote, the right t o live and to work here without needing permission to do
so, and everything that comes along with those rights .”; Secretary of State for the Home Department v Al -Jedda
[2013] UKSC 62 at para 12; and 2 BvR 2236/04 Bundesverfassungsgericht (18 July 2005 ) at B.I(1)(a) 66:
“[C]itizenship is the legal prerequisite for an equal civic status, which on the one hand establishes equal duties,
but on the other hand, and above all, establishes the rights whose guarantee legitimises public authority in a
democracy .”
9 Arendt The Origins of Totalitarianism 2 ed (Meridian Books, New York 1958) at 296-7. The Canadian Supreme
Court cites this and Kesby The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford
University Press, New York 2012) at 5 in Divito v Canada (Public Safety and Emergency Preparedness) [2013]
3 SCR 157 at para 21.
10 Knauer v United States (1946) 328 US 654 at 658, 674 and 679.
11 Afroyim v Rusk (1967) 387 US 253 at 267 -8: “Citizenship is no light trifle to be jeopardised any momen t
Congress decides to do so under the name of one of its gene ral or implied grants of power ”.
MAJIEDT J
13 (3) National legislation must provide for the acquisition , loss and restoration of
citizenship .”

[27] Citizenship is protected by the Constitution in section 20, by expressly providing
that “[n]o citizen may be deprived of citizenship ”. Importantly , that section forms part
of Chapter 2 of the Bi ll of Rights. In Chisuse , this Court extensively adumbrated the
importance of citizenship in the context of the maleficent historical deprivation of
citizenship in this country. In this regard , the Court cited the moving lament by
Sol Plaatje:

“For to c rown all our calamities , South Africa has by law ceased to be the home of any
of her native children whose skins are dyed with a pigment that does not conform with
the regulation hue .”12

[28] This Court emphasised further :

“Citizenship and equality of citizenship are therefore matter s of considerable
importance in South Africa , particularly bearing in mind the abhorrent history of
citizenship deprivation suffered by many in South Africa over the last 100 and more
years. Citizenship is not just a legal status. It goes to the core of a person ’s identity ,
their sense of belonging in a community and , where xenophobia is a lived reality , to
their security of person. Deprivation of , or interference with , a person’s citizenship
status affects their private and family life , their choices as to where they can call home ,
start jobs , enrol in schools and form part of a community , as well as their ability to
fully participate in the political sphere and exercise freedom of movement .”13
(Emphasis added .)

[29] The Act is the national legislation contemplated in section 3(3) of the
Constitution. I t came into effect on 6 October 1995. One of t he objectives of the Act ,
as outlined in its Preamble , is “to provide for the acquisition , loss and re sumption of

12 Chisuse above n 1 at para 27 citing Plaatje Native Life in South Africa (Picador Africa, Johannesburg 2007)
at 68.
13 Chisuse id at para 28.
MAJIEDT J
14 South African citizenship ”. The Act makes provision in chapter 2 for the acquisition of
South African citizenship as follows: by birth (section 2); descent (section 3);
naturalisation (section 4); or by grant by the Minister of a certificate o f naturalisation to
any foreigner who meets certain specified requirements (section 5).

[30] Loss of citizenship has severe consequences , set out in section 11(3) of the Act.
It entails being deemed , for the purposes of the Immigration Act,14 to be a foreigner ,
who is not in possession or deemed to be in possession of a permit referred to in
section 10(2) or section 25(2) of that Act; or in terms of section 31(2)(a) of that Act, not
exempted or deemed to be not exempted from the provisions of section 10(1) of t hat
Act.

[31] Section 7 of the Act regulates the renunciation of citizenship. It reads:

“(1) A South African citizen who intends to accept the citizenship or nationality of
another country , or who also has the citizenship or nationality of a country other
than the Republic , may make a declaration in the prescribed form renouncing
his or her South African citizenship.
(2) The Minister shall upon receipt of a declaration made under this section cause
such declaration to be registered in the manner prescribed , and thereupon the
person who made the declaration shall cease to be a South African citizen.
(3) Whenever a person ceases under subsection (2) to be a South African citizen ,
[their] children who are under the age of 18 years shall also cease to be
South African citizens if the other parent of such children is not , or does not
remain , a South African citizen .”

[32] For the sake of completeness , reference must be made to the provisions in the
Act which regulate the deprivation of citizenship , namely, sections 8 and 10. They read:

“8. Deprivation of citizenship

14 13 of 2002.
MAJIEDT J
15 (1) The Minister may by order deprive any South African citizen by
naturalisation of [their] South African citizenship if [they are] satisfied
that—
(a) the certificate of naturalisation was obtained by means of
fraud , false representation or the concealment of a material
fact; or
(b) such certificate was granted in conflict with the provisions of
this Act or any prior law.
(2) The Minister may by order deprive a South African citizen who also
has the cit izenship or nationality of any other country of [their]
South African citizenship if —
(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 t he Republic ,
would also have constituted an offence in the Republic; or
(b) the Minister is satisfied that it is in the public interest that such
citizen shall cease to be a South African citizen.
(3) Whenever the Minister deprives a person of [their] South African
citizenship under this section or section 10, that person shall cease to
be a South African citizen with effect from such date as the Minister
may direct and thereupon the certificate of naturalisation or any other
certificate issued under this Act in relation to the status of the person
concerned , shall be surrendered to the Minister and cancelled , and any
person who refuses or fails on demand to surrender any such certificate
which [they have] in [their] possession , shall be guilty of an offenc e
and liable on conviction to a fine or to imprisonment for a period not
exceeding five years , or to both such fine and imprisonment.
9. . . .
10. Deprivation of citizenship in case of children
Whenever the responsible parent of a minor has in terms of the provisions of
section 6 or 8 ceased to be a South African citizen , the Minister may , with due
regard to the provisions of the Children ’s Act, order that such minor , if [they
were] born outside the Republic and [are] under the age of 18 years , shall cease
to be a South African citizen .”
MAJIEDT J
16
[33] The primary challenge in respect of the unconstitutionality of the impugned
provision is that it infringes section 20 of the Constitution , that n o citizen may be
deprived o f citizenship. This raises th e centra l issue whether the automatic , ex lege
(by law) loss of citizenship constitute s a de facto (factual) deprivation of citizenship and
thus constitutes an infringement of the constitutional right to citizenship .
Put differently – is there a distinction between the automatic loss of citizenship as it
occurs under the impugned provision and a de facto deprivation of citizenship , as the
High Court held?

[34] Where a citizen voluntarily and formally acquires citizenship or nationality of
another country , section 6(2) of the Act requires that citizen to seek permission from
the Minister of Home Affairs to retain their South African citizenship . A failure to do
so results in the automatic cessation of South African citizen ship by virtue of the
impugned provision , read with section 6(2). The loss eventuates as a matter of course
by operation of law through a voluntary and formal act (except marriage) and the lack
of permission granted by the Minister for the retention of the citizenship.

[35] The High Court , it will be recalled , laid much emphasis on what it perceived as
the dichotomy between the loss a nd deprivation of citizenship. It underscored the
difference in the wording of the text between sections 3 and 20 in relation to this
dichotomy . According to that Court , deprivation of citizenship within its constitutional
meaning in section 20 pertains to a prohibition of citizenship , rendering a South African
citizen stateless.15 Loss and deprivation of citizenship are separate concepts in the
context of the Constitution and the Act , and the language of section 20 cannot be used
to house a claim concerning the loss of citizenship , said the High Court .16 This was the
primary basis for that Court ’s rejection of the DA ’s constitutional challenge .


15 High Court judgment above n 6 at para 25.
16 Id at para 61.
MAJIEDT J
17 [36] The Cambridge English Dictionary defines the verb “to deprive ” as to “take
something away from someone ”. “Loss ” is more passive in nature: “to no longer have
something or have less of something ”. The Oxford Dictionary defines the two concepts
thus: “to deprive” means “to dispossess (a person) of a thi ng, experience , status , etc.”
“Loss”, on the other hand, means “not retained in possession ”.

[37] As I see it , the distinction between the automatic loss of citizenship occasioned
by the impugned provision is m ore apparent than real and more semantic than
substantive , a distinction without a d ifference. Where the law automatically terminates
a citizen ’s “cherished and revered status ” and closes the “gateway to a number of
rights ”, without any forewarning and ev en knowledge of the citizen (and possibly even
the Department itself) simply on account of dual citizenship , it is plainly a deprivation
of citizenship. The legislative scheme is such that , without a discernible lawful purpose ,
the citizen ex lege loses c itizenship , something that the Supreme Court of Appeal
correctly described as “capricious ”.17

[38] But, even if there was this artificial distinction (I reiterate that I do not see any) ,
the automatic loss of citizenship brought about by the impugned provision is a form of
deprivation in contravention of the fundamental right contained in section 20.
Axiomatically , all law is subject to and mu st comply with the Constitution,18 and
section 8(1) of the Constitution in no uncertain terms declares that “the Bill of Rights
applies to all law , and binds the legislature , the executive , the judiciary and all organs
of state ”. Inasmuch as the Act is the legislation contemplated in section 3(3) of the
Constitution , it cannot subvert other rights contained in the Constitution and must
conform with the Bill of Rights. The right to citi zenship is entrenched in the
Bill of Rights and can in terms of section 36 not be infringed upon or limited without
justification .

17 Supreme Court of Appeal judg ment above n 4 at para 31.
18 Section 2 of the Constitution: “ This Constitution is the supreme law of the Republic; law or conduct inconsistent
with it is invalid, and the obligations imposed by it must be fulfilled”. See Barkhuizen v Napier [2007] ZACC 5;
2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 35.
MAJIEDT J
18
[39] Stripping citizens of the entrenched right in section 20 can only legitimately
occur through renunciation in terms of section 7 of the Act and in a fashion that does
not lead to statelessness. As stated , the right to citizenship i s of cardi nal importance as
it provides access to a number of other important rights like political rights ,19 freedom
of movement and residence rights20 and freedom of trade , occup ation and profession
rights ,21 as emphasised by this Court in Chisuse .22 Deprivation of citizenship , thus,
occasions loss of these other constitutional rights embodied in sections 19, 21 and 22.

[40] Regarding this approach by the High Court , Bilchitz and Ziegler state:

“There is nothing in section 20 to suggest that it only app lies in cases where the
deprivation of citizenship results in statelessness. Whereas the detrimental effects of a
deprivation of citizenship differ , inter alia , based on whether it leads to statelessness
(which is a particularly egregious form of deprivat ion), the literal meaning of this
provision is that ‘no citizen ’ may be deprived of their citizenship: hence , any form of
deprivation of citizenship under any circumstances constitutes a prima facie
infringement of section 20, requiring justification .”23

[41] I agree. Deprivation is , as they state , a broader concept entailing any active
removal of citizenship , irrespective of whether it leaves an individual stateless. This
interpretation accords with the text of section 20, which unconditionally prohibits
depriving any citizen of citizenship and , where deprivation occurs, it must be justified
under section 36 of the Constitution . In contrast , loss denotes a more passive state ,
where citizenship is no longer held without direct action taken to remove it. The a uthors
rightly argue that section 20 prohibits active deprivation without justification . This
reasoning is persuasive since it captures the constitutional protections surrounding

19 Section 19 of the Constitution.
20 Section 21 of the Constitution.
21 Section 22 of t he Constitution.
22 Chisuse above n 1 at para 24.
23 Bilchitz and Ziegler “Is the Automatic Loss of South African Citizenship for Those Acquiring Other
Citizenships Constitutional? Democratic Alliance v Minister of Home Affairs ” (2023) 39 SAJHR 97 at 105.
MAJIEDT J
19 citizenship more robustly , emphasising that any active removal of citizenshi p is
prima facie (on the face of it ) an infringement that bears justification in terms of
section 36(1) of the Constitution .

[42] Plainly then , even on the High Court ’s incorrect approach , the impugned
provision infringes the right to citizenship. We were told both in the respondents ’
answering papers and their oral subm issions in this Court that the s tate has no objection
to dual citizenship. They argued that the impugned provision , read with other related
sections in the Act , is not averse to dual citizenship. The respondents asserted that
South Africa , like many other countries , permits dual citizenship with selected
countries , by prior arrangement. According to them , South Africans who take up
citizenship of one of the countries which has a dua l citizenship arrangement with
South Africa , do not lose their South African citizenship and need not apply to the
Minister for permission to retain their South African citizenship.

[43] The respondents ’ defen ce was twofold: first that the s tate has a right to regulate
the process by which citizenship is acquired and lost , including that of dual citizenship
which under the impugned provision occurs through a voluntary act by the citizen; and
second , that section 6(2) is a “saving enactment ” of sorts. The first defence has been
adequately addressed , but I add a few further observations before consider ing the
second contention.

[44] It bears emphasis that the limitation of the right to citizenship by the impugned
provision serves no legitimate government purpose. Save for arguing that the s tate has
a right to regulate the acquisition and loss of citizenship , which is what , according to
the s tate, the impugned provision lawfully does , no other legitimate purpose was
advanced. That argument has already been firmly dispelled. The rationale behind this
legislation remains unexplained. That legislative scheme not only flies in the face of
the respondents ’ avowed lack of aversion to dual citizenship but also bears no
discernible legitimate purpose.

MAJIEDT J
20 [45] Legislation is co nstitutionally required to be rationally related to a legitimate
government purpose – if not , it is invalid.24 The test imposes a relatively minimal
requirement: an identification of a legitimate government purpose and a link between
the adopted means and that purpose. In the case of the impugned provision there is no
such link.

[46] With regard to the second defence – it was not a defence at all. Section 6(2)
seeks to avert the loss of citizenship, which is otherwise automatic. The antecedent
question is wh y citizenship must be lost in the first place. For the reasons stated before,
there is no reason at all. The existence of a ministerial power to exercise a discretion in
terms of section 6(2) to alter what is otherwise an automatic loss of citizenship is no
answer to the antecedent question.

[47] Whilst I do not consider it necessary to deal with the nature of the discretion
contained in section 6(2), I cannot but make the following observations about it.
Section 6(2) provides no crit eria at all on how the Minister ’s discretion is to be exer cised
and what its bounds are . The Minister is simply given unconstrained free rein by the
section to determine in her untrammelled discretion whether to permit dual citizenship.
The Supreme Court of Appeal rightly obse rved:

“What then is the purpose of the automatic loss of citizenship in s ection 6(1)(a)? That
remains unspecified. And it cannot be a legitimate object to threaten the deprivation
of citizenship so as to invest the Minister with power to avoid that cons equence. If that
were so , every arbitrary deprivation would be transformed into the legitimate exercise
of power simply because the Minister is given an untrammelled discretion to avoid that
outcome. In sum , to deprive a citizen of their rights of citize nship for no reason is
irrational. ”25


24 United Democratic Movement v President of the Republic of South Africa (No 2) [2002] ZACC 21; 2002 (11)
BCLR 1 213 (CC); 2003 (1) SA 495 (CC) at para 55.
25 Supreme Court of Appeal judgment above n 4 at para 26.
MAJIEDT J
21 [48] The Supreme Court of Appeal cannot be faulted for then concluding in light of
this observation that section 6(2) merely “underscores the arbitrariness and irrationality
of [the impugned provision] ”.26 The High Court ’s reasoning as an imprimatur for this
automatic forfeiture of citizenship merely because they acquired another citizenship is
singularly unpersuasive . The Legislature has offered no clear basis wh y dual citizenship
is a problem; on the contrary , we were m ade to understand that dual citizenship is
permissible , subject only to ministerial discretion. The reason for this conditionality is
unclear and utterly irrational. What we are left with is the bald assertion that the
retention or loss of citizenship is itself a legitimate use of powe r. T hat is beyond
comprehension. It is circular reasoning to argue that , because the power may be one
that the s tate could exercise , its existence makes its exercise legitimate. After all,
rationality must be determined a gainst substantively legitimate objects.27

[49] According to the High Court ’s reasoning , states have an interest in regulating
citizenship , given the significance of the status and the link between citizenship and the
work of the government. In this country , for example , said the High Court, holding
South African citizenship is a precondition , in many instances , for holding certain
public offices. Thus , reasoned the High Court , a connection between citizen and
country is required , and when a citizen through a voluntary act acquires the citizenship
of another country , and does not avail themselves of the right to approach the Minister
to seek permission to retain their South African citizenship , it can hardly be said that
the loss of citizenship that follows i s irrational.28

[50] As stated, in their written submissions in this Court the respondents supported
the reasoning and outcome of the High Court ’s judgment, but they made no further oral
submissions. A s I see it, the automatic loss of citizenship and its conse quential effect
far outweighs regulation as a legitimate government purpose. There is no conceivable

26 Id.
27 See generally Democratic Alliance v President of South Africa [2012] ZACC 24; 2012 (12) BCLR 1297 (CC );
2013 (1) SA 248 (CC) at para 32.
28 High Court judgment above n 6 at para 51.
MAJIEDT J
22 purpose nor rational connection why a South African should automatically lose their
citizenship by acquiring the citizenship of another country , particularly with the
increasing cross -border migration of people. A bsent any check on the unfettered power
of the Minister to make decisions involving who loses or retains South African
citizenship , the impugned provision is constitutionally invalid.

[51] This Court has firmly set its face against unbounded and undefined discretionary
power. In Dawood ,29 this Court held:

“There is . . . a difference between requiring a court or tribunal in exercising a
discretion to interpret legislation in a manner that is consistent with the Constitution
and conferring a broad discretion upon an official , who may be quite untrained in law
and constitutional interpretation , and expecting that official , in the absence of direct
guidance , to exercise the discretion in a manne r consistent with the provisions of the
Bill of Rights. Officials are often extremely busy and have to respond quickly and
efficiently to many requests or applications. The nature of their work does not permit
considered reflection on the scope of consti tutional rights or the circumstances in which
a limitation of such rights is justifiable. It is true that as employees of the State they
bear a constitutional obligation to seek to promote the Bill of Rights as well. But it is
important to interpret that obligation within the context of the role that administrative
officials play in the framework of government , which is different from that played by
judicial officers .”30

[52] It further held:

“[I]f broad discretionary powers contain no express constraints , those who are affected
by the exercise of the broad discretionary powers will not know what is relevant to the
exercise of those powers or in what circumstances they are entitled to seek relief from
an adverse decision . . . . In the case of the statutory discretion at hand , there is no
provision in the text providing guidance as to the circumstances relevant to a refusal to
grant or extend a temporary permit. I am satisfied , that in the absence of such

29 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC) ; 2000 (8) BCLR 837 (CC).
30 Id at para 46.
MAJIEDT J
23 provisions , it would not promote the spirit , purport and objects of the Bill of Rights for
this Court to try to identify the circumstances in which the refusal of a temporary permit
to a foreign spouse would be justifiable. Nor can we hold in the present case that it is
enough to leave it to an official to determine when it will be justifiable to limit the right
in the democratic society contemplated by section 36. Such an interpretation , of which
there is no suggestion in the Act , would place an improperly onerous burden on
officials , which in the constitutional scheme should properly be borne by a competent
legislative authority. Its effect is almost inevitably that constitutional rights (as in the
case of two of the respondents before this Court) will be unjustifiably limited in som e
cases. Of even greater concern is the fact that those infringements may often go
unchallenged and unremedied .”31

[53] The impugned provision therefore cannot pass constitutional muster . First,
section 6(2) cannot save it from unconstitutionality , because the section does not
address the question why there is automatic loss of citizenship in the first place. Second,
section 6(2) affords the Minister broad , unchecked power without any guidelines as to
how the Minister ’s decisions are to be made . This is untenable , given the infringement
of citizenship as a fundamental right. This is exacerbated by the consequential loss of
the enjoyment of other fundamental rights.

[54] Section 6(2) affords the Minister the discretionary power to , as she deem s fit,
order the retention of citizenship. It bears repetition that t his is an unconstrained
discretion without any specification as to how such discretion is to be exercised. There
is no indication at all regarding what facts , factors and circumstances would guide the
Minister in deciding either way on the retention of citizenship. Thus , there can be no
meaningful assessment of the reasons for the decision that may support retention , nor,
by implication , what it is that re quires the loss of citizenship. I agree with t he
Supreme Court of Appeal that “the scheme of the legislation , automatic loss , subject to

31 Id at paras 47 and 50.
MAJIEDT J
24 unbounded discretionary retention , is a recipe for capricious decision -making , without
the specification of legitimate objects ”.32

[55] While constitutional validity is always tested objectively ,33 the plight of
Mr Plaatj es vividly demonstrates the irrationality of the impugned provision. He lost
his South African citizenship without his knowledge and against his wishes to remain a
citizen of this country. Mr Plaatj es discovered by chance that he was no longer a
South African citizen. It seems that even the Department and its officials were under
the misapprehension that he was still a citizen of this country. That explains why ,
between December 2007 and July 2014 , Mr Plaatj es had travelled to this country
numerous times , using his South African passport. According to him, no one at
immigration had , during this time , enquired whether he had a second citizenship , even
where he was travelling with his wife and two daught ers, who all had British citizenship
by way of birth . This automatic loss of citizenship , unbeknown to him (and maybe even
to the Department) , without any hearing whatsoever , is a constitutional aberration.

[56] As the amicus ’ comprehensive submissions demons trate, the High Court ’s
reasoning is out of step with international instruments and international law. There are
no specific provisions in i nternational law on dual citizenship , and in accordance with
the principle of state sovereignty each state may make provision for this . Many have
done so. The amicus ’ affidavit and written submissions provide useful ins ight into the
global position. In 1960 , some 62% of countri es prohibited dual citizenship. However ,
by 2020 , 76% of countries allow its ethnic citizens to voluntarily acquire the citizenship
of another country , without automatic repercussions f or their citizenship of origin. A
breakdown of these figures show s that dual citizenship is allowed as follows: 93% of
countries in Oceania; 91% in the Americas; 70% in Africa; 65% in Asia ; and 80% of
European countries. In the European context , the entire European Union (EU) project

32 Supreme Court of Appeal judgment above n 4 at para 31.
33 Ferreira v Levin N.O.; Vryenhoek v Powell N.O. [1995] ZACC 13; 1996 (1) S A 984 (CC); 1996 ( 4) BCLR 441
(CC) at para 26.
MAJIEDT J
25 presupposes dual loyalty , that is , loyalty to the EU and its institutions through EU
citizenship , and loyalty to the nation state. According to legal commentators , in a world
of increasing globalisation and transnational mobility , permitting dual citizenship is the
norm and not the exception.34

[57] Many countries , including a few in Africa , expressly provide for a right to dual
citizenship. Article 36 of the Constitution of Cuba provides: “the acquisition of other
citizenship does not imply the loss of Cuban citizenship ”.35 The Zambian Constitution
provides in Article 39(1) that “[a] citize n shall not lose citizenship by acquiring the
citizenship of another country ”. Article 8(1) of the Constitution of Ghana provides: “[a]
citizen of Ghana may hold the citizenship of any other country in addition to [their]
citizenship of Ghana ”.36

[58] The constitu tions of a number of countries provide that citizenship may be lost
only through voluntary renunciati on – by implication excluding a loss of citizenship
due only to dual citizenship. For example , the Constitution of Albania provides in
Article 19(2): “[a]n Albanian citizen may not lose [their] citizenship , except when
[they] [give] it up”. Similar provisions c an be found in the constitution of the Slovak
Republic.37

[59] Foreign case law provides useful insight into the approach to the deprivation of
citizenship beyond our shores. In Schneider38 the Supreme Court of the United States
(US Supreme Court ) had to consider the legal position of Ms Angelika Schneider , a
German immigrant and citizen , who came to the US with her parents and became a
citizen at 16 years of age. When she graduated from college , Ms Schneider moved

34 Boll Multiple Nationality and International Law (Martinus Nijhoff Publishers, Leiden 2007) at xviii.
35 Other countries whose constitutions have similar provisions are Cabo Verde, Somalia , Seyche lles, Venezuela,
Colombia and K yrgyzstan.
36 See also Manby Citizenship Law in Africa: A Comparative Study 3 ed (African Minds, Cape Town 2016) at 2,
18 and 109-11.
37 Constitution of the Slovak Republic , Article 5(2): “No one shall be deprived of citizenship of t he Slovak
Republic against [their] will”.
38 Schneider v Rusk 377 US 163 (1964).
MAJIEDT J
26 abroad and later resided in Germany . The State Department claimed that Ms Schneider
had lost her US citizenship in accordance with a section of the Immigration and
Nationality Act , which revoked the citizenship of any naturali sed citizen who returned
to their country of birth and remained there for at least three years. The US
Supreme Court declared this law to be unconstitutional. The Court held that naturali sed
US citizens have the right to return to and reside in their native countries , and retain
their US citizenship , even if they never return to the U S.39

[60] In another matter later before the US Supreme Court , Afroyim , the central
question before the Court was whether one can automat ically lose one’s citizenship
simply by voting in a foreign election, when they have not renounced their citizenship.
Mr Beys Afroyim , a Polish -Latvian Jew , immigrated to the US and, in 1926 , became a
naturali sed US citizen. In 19 50, Mr Afroyim , a dual c itizen of the U S and Poland ,
travelled to Israel and , while there , participated in an Israeli election. When he
subsequently tried to renew his U S passport , the US government refused , arguing that
he automatically lost his citizenship by voting in a foreign election. The US
Supreme Court held that , because of the Fourteenth Amendment , Mr Afroyim could not
be stripped of his citizenship without his assent. The Court held that s ection 401(e) of
the Nat ionality Act , providing for automatic loss of citizenship for voting in a foreign
election , was unconstitutional.40

[61] Closer to home , in Mathe ,41 the Botswana High Court was recently faced with
the legal question whether children who were dual citizens of Bot swana and other
countries could be compelled to give up one nationality in favour of the other.
Section 15 of the Citizenship Act required a citizen of Botswana who is born with
dual citizenship to renounce their foreign citizenship in order to retain their Botswanan

39 Id at 168. The Court cited one of its earlier decisions in Kennedy v Mendoza -Martinez 372 US 144 (1963).
40 Id at 267. In a commentary on this decision, Spiro argues that it is virtually impossible to lose American
citizenship without formally and expressly renouncing it: Spiro “Afroyim: Vaunting Citizenship, Presaging
Transnationality” in Martin and Schuck (eds) Immigration Stories (Foundation Press, New York 2005) 147 at 163.
41 Mathe v The Attorney General , Case No. MAHGB -000321 -20, High Court of Republic of Botswana,
29 April 2022.
MAJIEDT J
27 citizenship once they turn 21 years of age. Ms Mathe , a citizen of Botswana , was also
a Norwegian citizen . Her son and daughter were dual citizens who held both Botswana n
and Norwegian citizenship. Ms Mathe and the other applicants in the case argued that
the requirement for their children to choose one nationality over another – an emotional
and daunting process – denied them their right to equal protection ( section 3 of the
Constitution of Botswana ), freedom of association ( section 13), freedom of movement
(section 14), anti-discrimination based on place of origin ( section 15), and the right to
vote ( section 67).

[62] The Botswana High Court upheld these arguments. It held that to require
children to renounce one citizenship in favour of the other violated sections 3, 13, 14,
15 and 67 of the Constitution of Botswana , as well as a general implied right to human
dignity. The Court held that choosing one citizenship over another can be a gruelling
and painful choice , generating a strong sense of deprivation. Such a requirement of
renunciation would , on a general scale , affect the individual more than it affects the
state.42

[63] The European Court of Human Rights and the Court of Justice of the
European Union require deprivations of citizenship to occur only after a careful ,
consequential , and case by case proportionality assessment. This assessment must
consider:
(a) the length of time one has already had and enjoy ed their citize nship;43
(b) whether there are perfectly legitimate or wholly innocuous reasons for
taking out a second citizenship;
(c) the economic , social , or psychological impact citizenship -stripping might
have on a person , including any direct effect on the usual or normal
development of their private or professional lif e as well as the effect
citizen -stripping might have on the person’s family ;44 and

42 Id at para 30.
43 Usmanov v Russia , Application No. 43936/18, ECtHR Third Section, 22 December 2020 at para 77.
44 JY v Wiener Landesregierung , C-118/20, CJEU , 18 January 2022 at para 59.
MAJIEDT J
28 (d) whether the person might subsequently have grave difficulties obtaining
identity documents such as a passport or identity document from the
second country whose citizenship they have acquired or local identity
documents needed to credibly engage in the full social and economic
life.45

[64] International law generally acknowledge s that it is in principle legitimate for a
state to wish to protect the special relationship of solidarity , loyalty , and good faith
between it and its nationals , and the reciprocity of rights and duties , which form the
bedro ck of the bond of nationality.46 But, as legal commentators state, the concept of
loyalty has undergone fundamental change. As Spiro observes:

“Today the loyalty objection to dual citizenship is flimsy. Competition am ong
nation -states may once have been zero -sum. In that context , there was at least a
possible theoretical foundation for the loyalty objection: what was good for one country
of nationality would necessarily be bad for the other. But that is hardly a sustainable
perspective on interstate relations today. There are few issues on which a win for one
state represents a loss for another. On the contrary , global issues are now mostly
common issues , in which coordinated international action results in ag gregate gains for
all states .”47

Conclusion and remedy
[65] In sum then, the impugned provision is unconstitutional as it infringes the right
to citizenship entrenched in section 20 of the Constitution and , consequentially , other
constitutional rights – namely political rights , the right to enter and remain in
South Africa and the right to freedom of trade , occupation and profession . The
impugned provision must be struck down . As stated , there was no dispute regarding
the suspension and limitation of the retrospectivity of the declaration of invalidity.

45 Hashemi v Azerbaijan , Application No. 1480/16, ECtHR Fifth Section, 13 January 2022 at paras 48-9.
46 Janko Rottma n v Freistaat Bayern , C‑135/08, CJEU , 2 March 2010 at para 51.
47 Spiro Citizenship: What Everyone Needs to Know (Oxford University Press, New York 2020) at 98. See also:
Bilchitz and Ziegler above n 23 at 102: “[I]t is increasingly recognised that loyalty to one political community in
no way precludes loyalty to another”.
MAJIEDT J
29
[66] Careful consideration was given in the Supreme Court of Appeal regarding the
remedy that would grant the most effective relief. Again , that Court cannot be faulted
for the conclusion it reache d based upon its unassailable reasoning. As that Court
stated , section 172(1) of the Constitution requires that , where legislation fails to pass
constitutional muster , a declaration of constitutiona l invalidity must be made , including
any or der that is just and equitable.48 That Court thus struck down the offending p art
of the impugned provision and ordered that the striking down be with immediate effect ,
to take effect from the date of its enactment , 6 October 1995.

[67] Effective relief as envisaged in section 38 of the Constitution is the remedy that
would be suitable and just , that would not only vindicate the rights of the aggrieved
individual , but also uphold and protect the Constitution. As this C ourt stated in Fose ,49
“the harm caused by violating the Constitution is a harm to the society as a whole , even
where the direct implications of the violation are highly parochial ”.50 In Steenkamp ,51
this Court explained:

“In each case the remedy must fit the injury. The remedy must be fair to those affected
by it and yet vindicate effectively the right violated. It must be just and equitable in
the light of the facts , the implicated constitutional principles , if any , and the controlling
law.”52

[68] The Act came into effect on 6 October 1995 , when the interim Constitution was
still in force. The interim Constitution was repealed by the final Constitution which
came into effect on 4 February 1997. The Act was inconsistent with the interim

48 Supreme Court of Appeal judgment above n 4 at para 39.
49 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
50 Id at para 95.
51 Steenkamp N.O. v Provincial Tender Board of the Eastern Cape [2006] ZACC 16 ; 2007 (3) SA 121 (CC); 2007
(3) BCLR 300 (CC).
52 Id at para 29.
MAJIEDT J
30 Constitution and remained so when the current Constitution took effect. To the extent
that it was inconsistent with the interim Constitution, it was therefore invalid and
unconstitutional. The declaration of invalidity should therefore take effect from the
date of its promulgation on 6 October 1995 .53 There is no need for a suspension order
and the Department accepted throughout this litigation that , in the event of a striking
down of the impugned section , such suspension would be unnecessary .

[69] The DA is entitled to its costs. What remains is to acknowledge the helpful
written submissions of the amicus curiae , Dr Spadijer , particularly with regard to
international law.

Order
[70] I make the following order:
1. The order of constitutional invalidity of the Supreme Court of Appeal is
confirmed.
2. It is declared that section 6(1)(a) of the South African Citizenship Act 88
of 1995 is inconsistent with the Constitution and is invalid from its
promulgation on 6 October 1995.
3. It is further declared that those citizens who lost their citizenship by
operation of section 6(1)(a) of the South African Citizenship Act 88
of 1995 are deemed not to have lost their citizenship .
4. The respondents are ordered to pay the applicant ’s costs in this Court,
including the costs of two counsel where so employed.

53 Estate Agency Affairs Board v Auction Alliance (Pty) Ltd [2014] ZACC 3 ; 2014 (3) SA 106 (CC); 2014 (4)
BCLR 373 (CC) at para 47 and Gory v Kolver N .O. [2006] ZACC 20 ; 2007 (3) BCLR 249 (CC) ; 2007 (4) SA 97
(CC) at para 39.

For the Applicants:


For the Respondent:



For the Amicus Curiae: A Katz SC and D Simonsz instructed by
Minde Schapiro and Smith Incorporated

W R Mokhare SC and M Zondo
instructed by Office of the State
Attorney , Johannesburg

E Cohen instructed by Ian Levitt
Attorneys