Chisuse and Others v Director-General, Department of Home Affairs and Another (CCT155/19) [2020] ZACC 20; 2020 (10) BCLR 1173 (CC); 2020 (6) SA 14 (CC) (22 July 2020)

Chisuse and Others v Director-General, Department of Home Affairs and Another (CCT155/19) [2020] ZACC 20; 2020 (10) BCLR 1173 (CC); 2020 (6) SA 14 (CC) (22 July 2020)

The Constitutional Court held that section 2(1)(a) and (b) of the amended South African Citizenship Act can be interpreted in a constitutionally compliant manner. The phrase 'any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen' is stative and applies to persons born before and after the amendment. This interpretation preserves citizenship rights for those who acquired citizenship by descent under previous legislation, avoiding arbitrary deprivation and irrational distinctions. The Court declined to confirm the High Court's order of constitutional invalidity but upheld the declaratory relief for the...

Citation
[2020] ZACC 20
Parties
Applicant: Yamikani Vusi Chisuse; Applicant: Elizabeth Mafusi Nthunya; Applicant: Martin Ambrose Hoffman; Applicant: Heinrich Dullaart N.O.; Applicant: Amanda Tilma; Respondent: Director-General, Department of Home Affairs; Respondent: Minister of Home Affairs
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
22 July 2020
Case Number
CCT 155/19
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
Order of constitutional invalidity not confirmed; declaratory and consequential relief granted to certain applicants.
Judges
Khampepe J, Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J, Victor AJ
Legal Topics
Citizenship by Birth, Citizenship by Descent, Constitutional Interpretation, Statutory Purposive Interpretation, Deprivation of Citizenship, Separation of Powers
Constitutional Law Administrative Law Citizenship by Birth Citizenship by Descent Constitutional Interpretation Statutory Purposive Interpretation Deprivation of Citizenship Separation of Powers

Case Brief

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Parties

Yamikani Vusi Chisuse

Applicant

Elizabeth Mafusi Nthunya

Applicant

Martin Ambrose Hoffman

Applicant

Heinrich Dullaart N.O.

Applicant

Amanda Tilma

Applicant

Director-General, Department of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Whether section 2(1)(a) and (b) of the South African Citizenship Act 88 of 1995, as amended, are constitutionally invalid for depriving citizenship by descent.
  2. 2 Whether the amended Act unreasonably and irrationally deprives persons of citizenship acquired by descent prior to 1 January 2013.
  3. 3 Whether a constitutionally compliant interpretation of section 2(1)(b) is possible to avoid deprivation of citizenship rights.

Ratio Decidendi

The Constitutional Court held that section 2(1)(a) and (b) of the amended South African Citizenship Act can be interpreted in a constitutionally compliant manner. The phrase 'any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen' is stative and applies to persons born before and after the amendment. This interpretation preserves citizenship rights for those who acquired citizenship by descent under previous legislation, avoiding arbitrary deprivation and irrational distinctions. The Court declined to confirm the High Court's order of constitutional invalidity but upheld the declaratory relief for the...

Court Disposition

Order of constitutional invalidity not confirmed; declaratory and consequential relief granted to certain applicants.

Orders

  • The order of the High Court declaring section 2(1)(a) of the South African Citizenship Act 88 of 1995, as amended, constitutionally invalid is not confirmed.
  • The order of the High Court declaring section 2(1)(b) of the South African Citizenship Act 88 of 1995, as amended, constitutionally invalid is not confirmed.