The Constitutional Court delivered a landmark unanimous judgement on May 6 that declared section 6(1)(A) of the SA Citizenship Act of 1995 unconstitutional and invalid. This decision marks a critical turning point in addressing a three-decade legacy of legislation that inadvertently stripped countless South Africans of their citizenship rights, often without their knowledge and with profound generational consequences.
The ruling provides for the retrospective immediate automatic restoration of citizenship to apply to any loss of citizenship that may have occurred in terms of the strike-down provision on or after October 6 1995, and renders redundant any discretionary determination of citizenship made by the department of home affairs.
The judgment has been rightfully widely celebrated.
However, this blanket approach seems to have missed the mark in dealing with several related critical dimensions. The absence of an affirmative action in the restoration process means no choice is afforded to affected individuals. The court’s order plainly directs that “those citizens … are deemed not to have lost their citizenship”. Potential conflicts with foreign nationality laws and complications for those who acquired foreign citizenship based on their ceased SA status are key consequential elements that seem to have been overlooked.
By determining a retroactive date for the immediate citizenship restoration, the court created an arbitrary timeline that fails to account for the unique situations of South Africans who, over time, lost their citizenship. This approach assumes that all affected individuals want the restoration of their SA citizenship, which may not be universally true. The automatic nature of the restoration in this shape and form disregards the transformations in people’s lives, identities and legal statuses over nearly three decades.
Read the full Opinion as published on Business Day.
By Claudia Pizzocri, CEO at Eisenberg & Associates Inc.