You Can Be a Dual Citizen - and Still Be South African
Where the law, without forewarning or even knowledge of the citizen, automatically terminates a citizen’s citizenship simply on account of dual citizenship, it is plainly a deprivation of citizenship.
During the last three years a case has wound through the courts about the validity of a statutory provision which stipulates that South Africans who take out another country’s citizenship automatically lose their South African citizenship.
The Bill of Rights in the national Constitution declares, “No citizen may be deprived of citizenship”.
The right can be limited. The Bill of Rights states that the rights in it may be limited by law if the limitation is reasonable and justifiable in an open democratic society.
The Citizenship Act provides (as mentioned) that an adult South African citizen who, by some voluntary formal act (other than marriage), acquires the citizenship of another country shall cease to be a South African citizen, unless he or she first applied for and obtained permission from the Minister of Home Affairs to retain South African citizenship, which may be granted if the Minister “deems it fit”.
Is this a “reasonable and justifiable” limitation envisaged in the Bill of Rights of a citizen’s right not to be deprived of citizenship? Is it reasonable and justifiable, that South Africans should in terms of the Citizenship Act lose their citizenship if they voluntarily acquire another country’s without first getting a ministerial permit to retain South African citizenship?
The Democratic Alliance (DA) thought not. The DA applied to the Pretoria High Court in 2021 for an order declaring that this provision of the Citizenship Act was inconsistent with the Constitution and invalid. The judge disagreed and said that the State has an interest in regulating citizenship given its significant status, and the provision did not infringe the constitutional right not to be deprived of citizenship but made provision for mere “loss” of citizenship (as envisaged in the Constitution’s express stipulation that national legislation must provide for the acquisition, “loss” and restoration of citizenship). The judge dismissed the DA’s application.
The DA appealed to the Supreme Court of Appeal which, by unanimous decision of all five judges in 2023, upheld the appeal and set aside the Pretoria High Court’s order.
The Supreme Court of Appeal observed that the government parties (the Minister of Home Affairs and the Director-General of the Department of Home Affairs) were unable to point to a legitimate government purpose which the provision seeks to achieve by the cessation of citizenship when a South African citizen formally acquires the citizenship of another country, save for a generalised submission that its purpose is to regulate the acquisition and loss of South African citizenship. That is not to state a legitimate purpose.
All legislation regulates something. That is its function. But this is not the purpose of a particular piece of legislation. To meet the standard of rationality, the Minister was required to provide the specific and legitimate purpose that the impugned provision was designed to foster. That is not done by saying that the legislation is there to regulate. Nor is the irrationality of the deprivation of citizenship cured by conferring on the Minister an untrammelled discretion to avoid it. The scheme of the legislation, automatic loss, subject to unbounded discretionary retention, is a recipe for capricious decision-making, without the specification of legitimate objects.
As to whether the offending provision of the Citizenship Act infringes the constitutional right not to be deprived of citizenship or whether it merely makes provision for “loss” of citizenship, the Supreme Court of Appeal stressed that legislation may not infringe the Bill of Rights unless the legislation is reasonable and justifiable. The offending provision of the Citizenship Act is accordingly inconsistent with the Constitution.
The Supreme Court of Appeal replaced the Pretoria High Court’s order with an order declaring that the offending provision of the Citizenship Act is inconsistent with the Constitution and is invalid from its promulgation, and that citizens who lost their citizenship by operation of that provision of the Citizenship Act are deemed not to have lost their citizenship.
The Constitutional Court has the final decision about the constitutionality of a provision of an Act of Parliament and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force.
The DA therefore applied to the Constitutional Court for confirmation of the order by the Supreme Court of Appeal.
The DA contended that it brought its application in the public interest in defence of the many South Africans living abroad who have acquired a second citizenship in good faith and been stripped of their citizenship automatically by operation of law. The DA stated that this automatic loss of citizenship occurred without the knowledge of these persons and, on the probabilities, also even without the knowledge of the Department of Home Affairs.
The Minister and the Director-General of Home Affairs stated that they would abide the decision of the Constitutional Court and that their written submissions had been filed to assist this Court in the interpretation of the impugned provision. However, their written submissions supported the interpretation and conclusions of the High Court.
The Constitutional Court stated that the central issue was whether the automatic loss of citizenship in terms of the Citizenship Act constituted a deprivation of citizenship and thus an infringement of the constitutional right to citizenship. The Court noted that dictionaries defined “to deprive” as to “take something away from someone”, whereas “loss” is more passive in nature and means “to no longer have something”.
The Constitutional Court concluded that, where the law without forewarning or even knowledge of the citizen (and possibly even the Department) and for no discernible lawful purpose automatically terminates a citizen’s citizenship simply on account of dual citizenship, it is plainly a deprivation of citizenship which contravenes the fundamental right of a citizen not to be deprived of citizenship without justification.
The Constitutional Court, by unanimous decision of all nine justices in early May 2025, ruled that the impugned provision is unconstitutional, as it infringes the right to citizenship entrenched in the Bill of Rights and hence other fundamental rights reserved for citizens.
The Constitutional Court confirmed the order of constitutional invalidity by the Supreme Court of Appeal that the offending provision of the Citizenship Act is invalid from its promulgation and that citizens who lost their citizenship by operation of the provision are deemed not to have lost it.
The Bill of Rights declares that every citizen is free to make political choices, which includes the rights to form a political party, to participate in the activities of a political party, to recruit members for a political party, and to campaign for a political party or cause.
Every adult citizen has the right to vote in secret in elections, and to stand for public office and hold office if elected.
Every citizen has the right to enter, remain in and reside anywhere in the Republic. Every citizen has the right to a passport.
Every citizen has the right to choose their trade, occupation or profession freely.
The Constitutional Court confirms that these rights apply equally to South Africans who acquire the citizenship of another country.
Many South Africans live and work abroad but do not want to lose their South African citizenship because for many their intention is to return home one day.
All citizens are equally entitled to the privileges and benefits of citizenship, declares the Constitution.
The Electoral Act allows South African citizens currently resident abroad to apply for registration as voters and to vote at the South African embassy, high commission or consulate in that country.
All these rights are enjoyed equally by South Africans who are resident inside or outside the Republic and who may for some reason have found it necessary to acquire the citizenship of another country.
Gary Moore, a practising attorney for 30 years, is a Senior Associate of the Free Market Foundation.