Constitutional Invalidity In Citizenship Act Granted by the High Court of South Africa

South African citizenship legislation has generally provided three pathways by which citizenship can be acquired, i.e. birth, descent, and naturalization. Citizenship by birth has been determined by where an individual is born. Citizenship by descent is acquired from a parent. It is, thus, necessary to place these two in a historical context – how these concepts have been understood under the various citizenship statutes.

Petitioner’s Submission

The first applicant is Yamikani Vusi Chisuse. He was born on 9th October 1989 in Lilongwe, Malawi. The second applicant is Elizabeth Mafusi Nthunya. She was born in Lesotho on 21st September 1982. The third applicant is Martin Ambrose Hoffman. He was born on 8th March 1970 in Bulawayo, Zimbabwe. The fourth applicant is Heinrich Dullaart, the legal guardian of Emma Angelique Dullaart – his granddaughter. She was born on 25th December 2006 in Accra, Ghana. The fifth applicant is Amanda Tilma. She was born in Bulawayo, Zimbabwe, on 26th February 1969. The applicants 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 all the applicants’ submissions in this regard, except those of the second applicant.

Court’s Order

The High Court accepted the applicants’ submissions about the constitutional invalidity of Sec. 2(1)(a) and (b). The High Court also accepted the factual circumstances and evidence entitling all the applicants, bar the second applicant, to the consequential relief they sought. About the second applicant, the High Court found that insufficient details had been provided for her to be granted consequential relief, and the matter was postponed sine die.

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The High Court declared Sec. 2(1)(a) and (b) of the amended Citizenship Act constitutionally invalid. It further granted the consequential relief to the applicants, except the second applicant. The court declared them as citizens and directed the Director-General of the Department of Home Affairs to register their births. He was also directed to enter their details into the population register, assign them South African identity numbers and issue them South African identity documents and identity cards as well as birth certificates.


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