Always a Saffer - South African citizenship rights restored

Section 6(1)(a) of the Act provides for the automatic loss of citizenship when a citizen, not a minor, acquires the citizenship or nationality of another country through a voluntary and formal action, other than marriage.

Following the dismissal of the DA's case in the High Court, the Supreme Court of Appeal overturned the High Court decision and handed down its landmark judgment in Democratic Alliance v Minister of Home Affairs and Another 2023 (6) SA 156 (SCA) wherein it declared section 6(1)(a) unconstitutional and as a result striking it down with retrospective effect as from 6 October 1995. It was for the Constitutional Court to make the final decision.  On 6 May 2025 the Constitutional Court confirmed that section 6(1)(a) was indeed unconstitutional.

The effect of the judgment is that those individuals who lost their SA citizenship by operation of section 6(1)(a) are now deemed to have not lost their citizenship. In other words, their citizenship has been restored.  

In terms of the Act, citizens may renounce their SA citizenship and accept the citizenship or nationality of another country by declaration to the Minister (section 7(1)). Alternatively, the Minister may, by way of making an order, deprive a SA citizen who also has the citizenship or nationality of another country, subject to considerations of public interest or imprisonment in another country (section 8(2)). Where the parent of a minor child has lost their citizenship in terms of section 6 or 8 of the Act the Minister has discretion, in specific instances, to order that such minor is no longer a citizen. The SCA in its judgment highlighted that despite the provision for the automatic loss of citizenship, retention of citizenship is dependent on Ministerial discretion (section 6(2) of the Act). Both the SCA and the Constitutional Court emphasised that section 6(2) of the Act provides no guidelines or constraints which govern what the Minister should secure and what considerations are relevant in coming to the decision to deprive an individual of their citizenship. Accordingly, the Constitutional Court made the following distinct observations in declaring section 6(1)(a) unconstitutional:

• No reason is provided as to why the loss of citizenship occurs automatically and by operation of law; and
• The Minister has unfettered discretion.

The court found that the section is arbitrary and irrational. Broad discretionary powers that contain no constraints make it unclear to the state official what is relevant in exercising such discretion. The result of which provides no guidelines for affected individuals regarding the circumstances in which they are entitled to seek relief from an adverse decision.

In summary, the Constitutional Court held that section 6(1)(a) infringes the right to citizenship entrenched in section 20 of the Constitution and other rights including the right to enter and remain in SA and the right to freedom of trade, occupation and profession.

Two concluding notes:

1. Persons who are beneficiaries under the judgment should be prepared for the potential delays and complexities arising from the Department of Home Affairs' administrative procedures in managing the practical reinstatement of their citizenship.
2. Nothing precludes the State in future from amending the law to ensure constitutional compliance with the aim of having SA's with dual citizenship forfeit SA citizenship.