A WIN for South Africans abroad as Supreme Court strikes down loss of citizenship law

South Africa’s Supreme Court of Appeal has this morning handed down judgment in the matter between the DA and the Minister of Home Affairs regarding the devastating loss of SA citizenship to thousands of South Africans living abroad who unwittingly lost their citizenship when they applied for a second citizenship. And it’s GREAT NEWS for South Africans everywhere – the court ruled that the apartheid-era law was invalid and has reinstated SA citizenship for all those who lost it!

The original High Court order has been set aside and it has been declared that the change made to the South African Citizenship Act 88 of 1995 is “inconsistent with the Constitution and is invalid from its promulgation on 6 October 1995”.

The High Court said:

“It is further declared that those citizens who lost their citizenship by operation of s 6(1)(a) of the South African Citizenship Act 88 of 1995 are deemed not to have lost their citizenship.”

The DA’s Adrian Roos (Shadow Deputy Minister of Home Affairs) has been relentless in fighting for the rights of South Africans to their own citizenship. He first presented arguments to the High Court in early 2021, following a non-partisan petition set up by the DA and SAPeople, and signed by thousands of South Africans who had lost their citizenship without their knowledge.

And after losing that case, Roos headed to the Supreme Court of Appeal in February this year to continue the fight for thousands who had no idea they had been stripped of their SA citizenship when they voluntarily obtained the citizenship of a second country. Some in fact had even been incorrectly informed by SA Embassies in their countries.

Almost 2 million South Africans currently live abroad, with thousands potentially affected by this arcane law which was introduced in October 1995, but which many South Africans have been unaware of even to this day. (Since 1995, the law had required that South Africans apply for – and pay – for a Letter of Retention from SA, before applying for a second citizenship.)

The DA believed that Section 6(1)(a) of the Act was inconsistent with the Constitution, and with section 20 of the Constitution in particular, which states that “No citizen may be deprived of citizenship”.

Then DA Abroad Leader Dr Rory Jubber and Roos said at the time: “Not only does Section 6(1)(a) unreasonably violate this right by depriving citizens of citizenship, but it does so without even affording them any notice.

Today they were proved right! And thousands of South Africans will be sure to be celebrating tonight with a braai in Sydney, New York, London and Istanbul… happy to be told they can have their citizenship back!

Today Roos said:

“The DA today celebrates with thousands of South Africans abroad who had unknowingly lost their South African citizenship due to a draconian piece of apartheid legislation.

“The Supreme Court of Appeal (SCA) today declared that s 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. It is further declared that those citizens who lost their citizenship by operation of s 6(1)(a) of the South African Citizenship Act 88 of 1995 are deemed not to have lost their citizenship. Download the judgment here.

“After a 9-year-long campaign by the DA Abroad and a 5-year court battle by the DA, the judgment of the SCA is a victory for the constitutional right to citizenship.

“Section 6(1) of the Citizenship Act provides that an adult citizen loses their South African citizenship if they take on the citizenship of another country by a voluntary and formal act other than marriage without first receiving permission from the minister of home affairs to retain their South African citizenship.

“The SCA found that this vests in the Minister a vague and undefined discretionary power in relation to the retention of a fundamental right, the right to citizenship.

“In a 2020 judgement against Home Affairs the Constitutional Court stated that “the systematic act of stripping millions of black South Africans of their citizenship was one of the most pernicious policies of the apartheid regime, which left many as foreigners in the land of [their] birth.”

“This provision is in fact carried over from the an apartheid-era Citizenship Act which was used by the apartheid government to strip exiled freedom fighters and those taking citizenship of bantustans of their South African citizenship without their knowledge.

“It doesn’t belong in our constitutional democracy. If the ANC is serious about ridding our legislation of apartheid statutes they will not appeal this judgment.”