However, the court refused to confirm orders of the high court in
Pretoria, which had declared that two subsections of the South
African Citizenship Amendment Act of 2010 were constitutionally
The Constitutional Court reasoned that the 2010 act could be read
in a constitutionally compliant manner so that those born to a
South African parent, in or outside SA, acquire or retain South
Five people who were born in various countries in Africa from 1969
to 2006 brought an application before the high court in 2016 in
which they sought an order that they be declared South African
The department had failed to recognise their citizenship but did
not provide adequate reasons for this denial.
The five each provided evidence before the high court that one of
their parents was a South African citizen at the time of their
birth. The high court accepted the applicants’ submissions, with
the exception of those of one applicant.
Apart from an application to be declared South African citizens,
the five also sought an order declaring two sections of the 2010
Amendment Act to be unconstitutional.
The department failed to respond to the application, resulting in
the matter being set for hearing in May last year on an unopposed
The court granted four of the five people the relief they sought;
that they be declared South African citizens, that the department
register their births, enter their details into the population
register, assign them South African identity numbers and issue
them South African identity documents and/or identity cards as
well as birth certificates.
In addition to this, the high court declared the two sections
According to the constitution, the Constitutional Court must
confirm any order of invalidity made by the high court, before
that order has any force.
In a unanimous judgment written by justice Sisi Khampepe, the
court said the high court provided sparse reasons for its findings
of constitutional invalidity.
“This seems to have been a consequence of the (minister of home
affairs and the home affairs department`s) dereliction of their
responsibility during the proceedings in the high court.
“Regardless, it is still incumbent on a court, operating within
our constitutional dispensation, which embeds the separation of
powers principle, to provide full reasons before declaring
legislation to be invalid,” Khampepe said.
Khampepe said this was unfortunate and hoped that failure to
provide reasons when legislation was declared invalid did not
become a regular practice by lower courts. She said an
interpretation of the 2010 act that only operates in favour of
those born after its commencement is the one which is at variance
with the constitution.
“It is this narrow, prospective-only interpretation that strips
citizenship rights from a great number of people in the most
unfair and unjustified manner.
“It is that interpretation which would render the operation of the
2010 amendment retrospective by wiping out citizenship that
existed under the previous acts without replacing it with another
form of citizenship, and by taking away citizenship rights without
retaining those previously-acquired rights,” Khampepe said.
Khampepe ordered the department to pay the costs of the four.
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