Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20 shall be a South African citizen by birth.14 In the High Court, the applicants sought the constitutional remedies of reading in the words ‘or by descent’ to s 2(1)(a) and the words ‘or was’ to s 2(1)(b). Siding with the applicants, the High Court declared the statutory provisions unconstitutional and ordered such a reading-in on 20 September 2019. 15 As is usual, this order was then subject to a confirmation hearing at the Constitutional Court, held on 13 February 2019, with judgment issued more than a year thereafter on 22 July 2020. The High Court decided the matter without hearing submissions from the respondent bureaucracy. While contrary to ideal practice, the High Court did so since the delay — already at two years in front of the High Court and part of a seven-year history of negotiations between the public interest law organisation Lawyers for Human Rights and the DHA16 — was mounting and the DHA had not even filed papers. Simply failing to represent itself in judicial matters is a relatively common practice for the DHA.17 In view of the respondent’s absence, the High Court properly articulated the DHA’s view on the statute on its behalf.18 In deciding in favour of the applicants and in ordering a proactive remedy, the High Court demonstrated how far the South African first-instance courts have come since the years immediately after the advent of constitutional democracy, when decisions in favour of non-citizens were few and far between. 19 In the next stage of the litigation, the Constitutional Court granted the DHA condonation to make submissions in its proceedings.20 THE RELEVANT STATUTORY FRAMEWORK At issue in Chisuse were two legislative subcategories of two broader categories of persons born to a South African parent outside of the country: persons seeking recognition as citizens by descent and persons seeking recognition as citizens by birth. The first subcategory is made up of those who seek citizenship by descent by (1) being born to a South African parent outside of the country and (2) registering their birth in terms of s 3 of the 1995 Citizenship Act. The second subcategory included those seeking citizenship by birth by (1) being born to a South African parent outside of the country but (2) without registering their birth in terms of s 3 of the 1995 Citizenship Act.21 On the statutory reading effectively 14 15 16 17 18 19 20 21 Amendment Act (n 9) ss 2(1)(a)–(b). Chisuse High Court (n 13). Lawyers for Human Rights, ‘Constitutional Court Settles 7-Year Battle over Citizenship’ (Press Statement, 23 July 2020) <https://www.lhr.org.za/lhr-news/press-statementconstitutional-court-settles-7-year-battle-over-citizenship/>. Christine Hobden, ‘The Case of Chisuse and Others Versus Department of Home Affairs (CC:155/19)’, European University Institute Global Citizenship Observatory (Web Page, 14 April 2020) <https://globalcit.eu/the-case-of-chisuse-and-others-versus-department-ofhome-affairs-cc155-19/> (‘The Case of Chisuse’); Estelle Ellis, ‘Citizenship Case Reveals Chaos at Home Affairs as It Battles 8,000 Lawsuits’, Daily Maverick (Web Page, 14 February 2020) <https://www.dailymaverick.co.za/article/2020-02-14-citizenship-case-reveals-chaosat-home-affairs-as-it-battles-8000-lawsuits/>. Chisuse High Court (n 13). See Jonathan Klaaren, ‘So Far Not So Good: An Analysis of Immigration Decisions under the Interim Constitution’ (1996) 12(4) South African Journal on Human Rights 605. Chisuse (n 1) 8–9 [15]–[17]. ibid 11 [21]. 179