Section 6(1)(a) of the South African Citizenship Act, 1995, which provides that a South African citizen loses that citizenship if they voluntarily acquire another citizenship, is unconstitutional. People who lost their citizenship under section 6(1)(a) are deemed to have never lost their citizenship.
Democratic Alliance v Minister of Home Affairs and Another is a landmark decision of the Constitutional Court of South Africa which struck down section 6(1)(a) of the South African Citizenship Act, 1995 as unconstitutional. Section 6(1)(a) provided that a South African citizen who voluntarily acquired another country's citizenship automatically lost their South African citizenship, unless they applied in advance to the Minister of Home Affairs for permission to retain their citizenship. The court also ordered that all people who had lost their citizenship would be deemed to have never lost it.[1][2]
The case was brought by the Democratic Alliance on behalf of South Africans who had unknowingly lost their citizenship. Dr Steven Spadijer appeared as an amicus curiae, with both the Democratic Alliance and Dr Spadijer urging the Court to strike down the ban on dual citizenship.[3] The decision was given on 6 May 2025, as a confirmation of an order given by the Supreme Court of Appeal in 2023.[4] The unanimous judgment was written by Justice Steven Majiedt.[1]
A distinct South African citizenship was introduced by the South African Citizenship Act, 1949. This act provided that an adult South African citizen who acquired the citizenship of another country by a voluntary act (other than marriage) would lose their South African citizenship.[6][7] In 1991 the Citizenship Act was amended to give the Minister of Home Affairs the power to exempt individuals or groups of people from the loss of citizenship.[8][9]
In 1995, following the end of apartheid, a new citizenship law was enacted as the South African Citizenship Act, 1995. This act established two circumstances under which South African citizenship would automatically be lost: by acquiring citizenship of another country by a voluntary act (other than marriage); and by serving in the armed forces of another country at war with South Africa.[10][11] The act allowed a citizen to apply to the Minister of Home Affairs to retain their South African citizenship before taking an act that would otherwise cause them to lose their citizenship.[12]
In 1997 the current Constitution of South Africa came into force. In the Bill of Rights it provides that "No citizen may be deprived of citizenship."[13] It was suggested by legal writers that the Citizenship Act's provisions for loss or deprivation of citizenship might be incompatible with the constitution.[14]
Case history
In July 2018 the Democratic Alliance (DA) applied to the Gauteng Division of the High Court for an order striking down section 6(1)(a) of the Citizenship Act as unconstitutional, and restoring the citizenship of all people who had lost their citizenship by the application of the section.[15][1] The case was argued before judge Jody Kollapen on 10 May 2021.[16] The DA argued that the section was unconstitutional for three reasons: that it was irrational, served no legitimate public purpose, and operated automatically without notice to those affected;[17] that it violated section 20 of the constitution, which provides that no citizen may be deprived of citizenship;[18] and that it limited other constitutional rights which are only available to citizens, like the right to vote and the right to enter South Africa.[19]
The High Court judgment handed down on 6 August 2021 dismissed the application. The court found that the law was not irrational as the state had a legitimate interest in the regulation of citizenship, and the loss of citizenship was not automatic as it only followed a voluntary act of acquiring another citizenship.[20] The court also rejected the challenge based on section 20 of the constitution, referring to section 3 of the constitution which provides that national legislation "must provide for the acquisition, loss and restoration of citizenship". The court reasoned that the loss of citizenship under the law in question was distinguished from the deprivation of citizenship prohibited by section 20.[21] Finally, the court rejected the argument based on the limitation of other rights, finding that the loss of other rights resulting from the loss of citizenship was not a limitation of those rights.[22][1]
Dugard, John; Currie, Iain (1996). "Public International Law". In Lewis, Carole; Visser, Coenraad (eds.). Annual Survey of South African Law 1995. Juta & Co. pp.76–97. ISBN0702139033.–viaHeinOnline(subscription required)
Kahn, E. (1950). "Constitutional Law". In Hahlo, H. R.; McKerron, R. G. (eds.). Annual Survey of South African Law 1949. Juta & Co. pp.1–30.–viaHeinOnline(subscription required)
Venter, Francois (1992). "Constitutional Law". In Lewis, Carole; etal. (eds.). Annual Survey of South African Law 1991. Juta & Co. pp.595–619. ISBN0702129399.–viaHeinOnline(subscription required)
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