DA’s ConCourt victory restores citizenship to thousands

Had the Democratic Alliance (DA) won its case to restore revoked South African citizenships more than a decade ago, South African-born Raphael Smith wouldn’t have gone through the distress he did when his birthright was taken from him.

Last Friday, 6 May, the DA won its court case, begun more than a decade ago, that declared that revoking South African citizenship for people who had dual citizenship was unconstitutional. For Smith, this was unfortunately too little too late. His citizenship was suddenly revoked in 2016 because of the South African Citizenship Act 88 of 1995.

He had moved to the United Kingdom in the late 1990s after growing up in Cape Town, having attended Herzlia school. “At some point in the early 2000s, I acquired a European Union passport through descent. At the time, I was told by an attorney in South Africa that this was fine as the 1995 Act didn’t apply if the citizenship was acquired through descent,” Smith said.

In 2006, he renewed his South African passport easily, but when he went to renew his passport again in London in 2016, he was told that he had to determine his status. He later received a letter stating that his South African citizenship had been revoked.

“Just like that, they stripped me of my South African citizenship – no process, no discussion. Just a simple declaration that I was no longer a citizen, and my status was changed to permanent resident,” Smith said.

The next year, when Smith needed to get home to South Africa over Pesach to be with his terminally ill sister, he wasn’t allowed to board his flight. “The EU passport I was left with required a visa to travel to South Africa,” he said. “South African Home Affairs wouldn’t give me a visa but rather gave me a letter to prove my permanent resident status. However, the airline wouldn’t let me on the plane because it required a visa for the passport I held.”

Smith was just one of many South Africans who found themselves in this situation. Some discovered that they couldn’t get their inheritance because their South African identity document numbers were no longer registered, according to Kim Kur, the founder of Community Circle SA, who has helped many with this problem.

Many lost their citizenship by mistake as a result of not knowing that they needed a letter of retention, or let it slide because the process of applying for the letter was too complicated and costly. In the United Kingdom, according to Kur, it used to cost just less than £500 (R12 115) to secure the letter of retention from South Africa, an obvious deterrent.

The DA challenged the constitutionality of the Citizenship Act 88 of 1995, which was based on the requirement that South Africa citizens had to apply for and obtain a “retention of citizenship” letter before accepting a second nationality.

David Bilchitz, professor of fundamental rights and constitutional law at the University of Johannesburg and University of Reading, said the DA brought the case for two main reasons, the first being that there’s no good reason for the law. The second that it violated rights in the Constitution, especially the right not to be deprived of citizenship. Taking away someone’s citizenship, he said, means that you can’t vote in a South African election and you don’t have the right to enter, remain in, and reside anywhere in the republic. You also don’t have the right to choose your trade, occupation, and profession freely.

The DA initially lost its case in the high court in 2021. The judge ruled that the government had the authority to make laws that took away citizenship, and that they didn’t violate constitutional rights because they didn’t render individuals stateless, according to Bilchitz.

Bilchitz and Reuven Ziegler wrote an academic article after the judgment, highlighting the flaws in the ruling. The Constitutional Court later drew inspiration from their in-depth assessment of the case, and quoted them expressly in the new ruling, according to Bilchitz.

Before the case went to the Constitutional Court, the Supreme Court of Appeal overturned the high court ruling,

Last week, the Constitutional Court confirmed this ruling, finding that South Africa permitted dual citizenship and, consequently, there was no good reason why it should automatically deprive people of their citizenship when they acquired another, nor require permission from the minister to retain their citizenship. The court also agreed that several rights in the Bill of Rights were infringed by this provision. The Constitutional Court declared the law unconstitutional from the time of its passing in 1995, and restored citizenship to all in terms of this provision since it came into effect in 1995.

Bilchitz commented on the historical context of the law, drawing links to the creation of the Bantustans to deprive black people of South African citizenship. “During apartheid, this type of law was used to take away citizenship from black people as well as common citizenship. The court’s rejection of this law affirms the value of everyone in South Africa having a common citizenship, which the government cannot take away without good reason,” he said. The law was also used to deprive citizenship from those forced into exiled due to their opposition to apartheid.

Michael Bagraim, DA and National Assembly member, said the weird thing was that 10 years ago, the party sued the minister of home affairs, who was then an African National Congress minister. Now, the recipient of the losing case, Home Affairs Minister Leon Schreiber, is a DA minister, “but he’s happy he lost the case”.

He said that before the party took on this cause, South Africans living in the UK reported that they were no longer able to vote at the DA Abroad office in London because of losing their citizenship. With 75.23% of out-of-country voters having voted for the DA in the 2024 national elections, according to Electoral Commission of South Africa statistics, it was a worthwhile endeavour for the party.

However, Bagraim said that for the DA, the court case wasn’t about garnering votes overseas but about upholding the Constitution and protecting citizens’ rights regardless of their vote. The home affairs minister’s plea in the case had nothing to do with votes, he said, but insisted that when “people have dual loyalty, we can’t trust them”.

Bagraim said another reason the DA pushed for this case was that it believed it would engender more confidence in South Africa in those who had left, perhaps “bringing skills back to South Africa”.

“Out of the two million South Africans living abroad, this law has affected thousands of lives. Our Constitution is clear, if you’re born here, you are a South African citizen. Their status was taken away on a whim, on a regulation put out by the previous minister,” Bagraim said.

“Minister Leon Schreiber is setting up an online portal to allow affected persons to have their citizenship restored on the national population register,” Bagraim said. “It’s in the works as it’s urgent. The government must cover all the costs of renewing people’s citizenship. It’s the government’s fault. It must now swallow the bullet.”