Author: Gary Moore

Date: 11 November 2018

The Constitution[1] states that all citizens are equally entitled to the rights, privileges and benefits of citizenship and equally subject to the duties and responsibilities of citizenship.[2] National legislation must provide for the acquisition, loss and restoration of citizenship.[3]

The South African Citizenship Act, 1995[4] as amended, is an Act to provide for the acquisition, loss and resumption of South African citizenship.[5]

Loss of citizenship on voluntary acquisition of citizenship of another country

The Act stipulates[6] that a South African citizen shall cease to be a South African citizen if he acquires,[7] “by some voluntary and formal act” other than marriage, the citizenship or nationality of a country other than the Republic.[8]

This provision (that a South African citizen ceases to be such if he acquires another country’s citizenship or nationality by voluntary formal act) violates the principle of the Rule of Law that laws should apply equally to all, save to the extent that objective differences justifies differentiation.[9]

The Act does not state that South African citizens cease to such if they acquired the citizenship or nationality of another country by birth or marriage.

It is submitted that the mere fact that a citizen acquired the citizenship or nationality of another country “by some voluntary and formal act” does not constitute an objective difference that justifies differential treatment.

It is often the case that people acquire a foreign country’s citizenship merely for practical convenience, or to secure an increased degree of certainty and security in that country. They do not take this step in order to transfer their sentiments of patriotism or national loyalty to that other country.

And, on the other hand, there may be dual citizens by birth who feel more patriotism and national loyalty for the foreign country concerned than for South Africa.

The Bill of Rights stipulates that no citizen may be deprived of citizenship,[10] and that everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. The state may not unfairly discriminate directly or indirectly against anyone.[11]

Rights in the Bill of Rights may be limited only i.t.o. law of general application to the extent that the limitation is reasonable and justifiable.[12]

The following remarks in the United States Supreme Court provide guidance about what might constitute reasonable differentiation that could justify a limitation of everyone’s right to equal treatment and of the right of citizens not to be deprived of citizenship:

It is a salutary doctrine that the government should exercise its powers so as not to discriminate between its inhabitants except upon some reasonable differentiation fairly related to the object of regulation. There is no more effective practical guarantee against arbitrary government, than to require that the principles of law which officials would impose upon a minority must be imposed generally. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.[13]

The mere fact that a person acquired another country’s citizenship by some voluntary formal act does not constitute a reasonable differentiation fairly related to the object of regulation.

Acquiring another country’s citizenship or nationality by some voluntary and formal act does not connote or imply a transfer of loyalty and allegiance by that person from South Africa to that other country, or justify his or her loss of the rights, privileges and benefits of citizenship of South Africa.

Naturalised citizen engaging flag in a war the Republic “does not support”

Any person who obtained South African citizenship by naturalisation in terms of the Act shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic “does not support”.[14]

This provision violates the Rule of Law, in being unduly vague about what is meant by a war the Republic “does not support”.

It is not clear whether it means that a citizen by naturalisation ceases to be such if he engages under a foreign flag in a war that the Republic does not support “in principle”, or whether he ceases to be such only if he engages under a foreign flag in a war in which the Republic “does not support one of the belligerent nations”.

Nor is it clear what form of support is referred to, whether the provision of military forces and matériel, or support by mere public statements and other forms of non-military support such as voting in an international organisation in favour of one of the belligerents.

The provision arguably even means that a naturalised South African citizen will not cease to be one if he engages on the side of one belligerent in a war that the Republic supports by backing the other belligerent.

It is a principle of the Rule of Law that laws should[15] be accessible and intelligible, clear and predictable.[16]

Minister may deprive dual nationals of citizenship for sentence of imprisonment

The Act also provides[17] that the Minister may by order deprive a South African citizen, who also has the citizenship or nationality of any other country, of his or her South African citizenship, if such citizen has at any time been sentenced in “any country” to a period of imprisonment of not less than 12 months for any offence which, if it was committed outside the Republic, would also have constituted an offence in the Republic.[18]

This too violates the principle of the Rule of Law that laws should apply equally to all save to the extent that objective differences justify differentiation.

The fact that a person sentenced to 12 months’ imprisonment is a dual national is not a reasonable differentiation fairly related to the object of regulation.

The provision thus violates this principle of the Rule of Law, that laws should apply equally to all, save to the extent that objective differences justify differentiation.

(Also, and despite the provision’s ostensibly clear language, it is arguably not entirely clear whether, to be liable to loss of South African citizenship, the person must have been sentenced in a country other than South Africa, or indeed only in South Africa, or in any country including South Africa.[19]

(To that extent, the provision may well thus also violate the Rule of Law by being unduly vague. As mentioned, laws should be intelligible and clear.)

Minister may deprive dual nationals of citizenship if satisfied in “public interest”

The Act states that the Minister may[20] deprive a South African citizen who also has the citizenship or nationality of any other country of his or her South African citizenship “if the Minister is satisfied that it is in the public interest” that such citizen shall cease to be a South African citizen.[21]

The provision does not state what constitutes “the public interest”. Nor does it contain criteria to guide the Minister in deciding whether or not he is satisfied that the public interest requires that a particular dual citizen be deprived of South African citizenship. The Minister need only be subjectively satisfied that this is the case.

This lack of guiding criteria clearly violates the principle of the Rule of Law that questions of legal right and liability should ordinarily be resolved by application of the law, and not the exercise of discretion. A discretion should ordinarily be narrowly defined. The broader and more loosely textured a discretion is, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the Rule of Law.[22]

 

[1] Constitution of the Republic of South Africa, 1996, s 3(2)(a).

[2] Constitution s 3(2)(a) and (b).

[3] Constitution s 3(3).

[4] South African Citizenship Act 88 of 1995.

[5] And for matters incidental thereto. South African Citizenship Act, Long title.

[6] Inter alia.

[7] Whilst not being a minor.

[8] South African Citizenship Act s 6(1)(a).

[9] Lord Bingham, “The Rule of Law” (Sixth Sir David Williams Lecture, 2006, Centre for Public Law, Univ of Cambridge), third sub-rule.

[10] Constitution s 20 (citizenship).

[11] On one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Constitution s 9 (equality) ss (1)–(3).

[12] In an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: The nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. Constitution s 36 (limitation of rights).

[13] Railway Express Agency Inc v New York 336 US 106, 112-113 (1949) per Jackson J.

[14] South African Citizenship Act s 6(3), added by Amendment Act 17 of 2010 s 6.

[15] So far as possible.

[16] Lord Bingham, “The Rule of Law” (supra), first sub-rule.

[17] Inter alia.

[18] South African Citizenship Act s 8(2)(a).

[19] The provision could arguably mean that he must have been sentenced in any country other than South Africa: It states the Minister may deprive a dual citizen of South African citizenship if he is sentenced in “any country” to imprisonment for an offence which “would be” an offence in the Republic (implying that the provision envisages being sentenced abroad).

But indeed, the unfortunate language of the provision could arguably even mean that he must have been sentenced in South Africa: The Minister may deprive a dual citizen of citizenship if he is sentenced in any country to imprisonment for an offence which would be an offence in the Republic “if it was committed outside the Republic” (which implies that being committed outside the Republic is merely hypothetical).

The provision could well mean that he dual citizen could have been sentenced in any country including South Africa: It states that the Minister  may deprive a dual citizen of South African citizenship if he has been sentenced in “any country”, which, on balance, probably means whether the dual citizen is sentenced abroad or in South Africa, but the wording does not make this overwhelmingly certain.

[20] By “order”.

[21] South African Citizenship Act s 8(2)(b).

[22] Bingham, “The Rule of Law” (supra), fifth sub-rule.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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