20
persons born before January 1, 2013 to retain or obtain citizenship. The affected persons
included those who had acquired citizenship by descent by being born to a South African
parent outside the country and had registered their births before January 1, 2013 and those
who were born to South African parents outside the country but had not registered their
births before January 1, 2013.
Key Issue to be determined
The main issue before the court was whether the challenged provisions were, indeed,
unconstitutional and therefore whether the order of invalidity should be confirmed.
Summary of judgment
• Section 20 of the Constitution stated that no citizen could be denied citizenship. The
Constitution passed on the authority for defining citizenship to national legislation.
The 2010 amendments to the Citizenship Act provided new definitions for citizenship
by birth and citizenship by descent. Citizenship by descent previously referred to ways
in which the child of a South African parent who was born outside the country could
acquire South African citizenship. After the amendment, it related to the ways in
which an adopted child could acquire the citizenship of their South African parent.
• The court held that the effect of the amendment was that those who were previously
capable of acquiring citizenship by descent could acquire citizenship by birth as they
were within the definition of a citizen by birth under
the amended Citizenship Act. The individuals who had Under section 167(5) of the South African
confirmation proceedings were
qualified for citizenship by descent under section 3(1)(b) Constitution,
filed at the Constitutional Court of South
of the 1995 Citizenship Act, as they were born outside Africa.
South Africa to a South African parent, were considered
citizens by birth in terms of section 2(1)(c) of the 1995
Citizenship Act. The court noted that the language of the legislature in section 2(1)(a)
of the amended Citizenship Act was clear. The provision retained citizenship for those
who were citizens by birth on December 31, 2012.
• In respect of section 2(1)(b), the Constitutional Court held that the purposive
interpretation of the words “who is born” meant that it was a phrase that included
those born both before and after the commencement of the 2010 Amendment.
• The court held that the parties were mistaken in interpreting the words as being
prospective only. The words described a state of being and the word “is” was used
only in that context as a linking verb. The Constitutional Court found that that was
not only a reasonable and grammatically-sound construction of the phrase, but also
a more constitutionally compliant one than that which gave the word “is” a narrow
interpretation. In light of that conclusion, the Constitutional Court held that four of
the applicants, and those similarly placed, were within the scope of section 2(1)(b), as
they were all born to a South African parent.
CITIZENSHIP AND NATIONALITY RIGHTS CASE DIGEST
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