2022 Statelessness & Citizenship Review 4(1) supportive of the place of civil birth registration in the global provision of legal identity for all.6 Although it was not the formal basis of the decision, the right to citizenship — guaranteed under s 20 of the Constitution of the Republic of South Africa 1996 (‘Constitution’)7 — was at the heart of the case. Of particular concern was the interaction of this right with two laws comprising part of South Africa’s citizenship regime: the South African Citizenship Act 88 of 1995 (‘1995 Citizenship Act’)8 and its amendment in terms of the South African Citizenship Amendment Act 17 of 2010 (‘Amendment Act’).9 The Constitutional Court closely examined the constitutionality of the Amendment Act because it had been implemented by the DHA in a manner which reversed prior policy and thus deprived some children with at least one citizen parent of a pathway to the legal benefit of citizenship. Limiting the operation of the presumption against retrospectivity (a common legal interpretive technique), the Constitutional Court confirmed the lower court’s order granting citizenship to those applicants who had provided the required evidence. 10 BACKGROUND The applicants applied to be declared South African citizens because the DHA would not allow them to register as or be declared citizens of South Africa.11 Each of the applicants had one parent who was a South African citizen at the time of their birth. However, all applicants were born outside of South Africa prior to the enactment of the Amendment Act. All applicants were African: the first was born in Lilongwe, Malawi; the second was born in Lesotho; the third and fifth were born in Bulawayo, Zimbabwe; and the fourth was born in Accra, Ghana. 12 The Gauteng Division of the High Court of South Africa (‘High Court’) was asked to declare two sub-provisions of s 2 of the Amendment Act unconstitutional: firstly, s 2(1)(a), to the extent that it failed to recognise citizenship as acquired by descent prior to 1 January 2013; and secondly, s 2(1)(b), because the DHA had interpreted its savings effect to only apply prospectively to persons born after 1 January 2013.13 Section 2(1) provides ‘any person’ (a) who immediately prior to the date of commencement of the [Amendment Act], was a South African citizen by birth; or (b) who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, 6 7 8 9 10 11 12 13 See Bronwen Manby, ‘“Legal Identity for All” and Statelessness: Opportunity and Threat at the Junction of Public and Private International Law’ (2020) 2(2) Statelessness & Citizenship Review 248. Constitution of the Republic of South Africa, s 20 (‘Constitution’). South African Citizenship Act 88 1995, 364 Government Gazette (South Africa) (‘1995 Citizenship Act’). ibid amended by South African Citizenship Amendment Act 17 2010, 546 Government Gazette (South Africa) (‘Amendment Act’). Chisuse (n 1) 33–35 [71]–[74], 37 [81]. ibid 6 [9]. ibid 6 [7]. Chisuse v Director-General: Department of Home Affairs (High Court of South Africa, Gauteng Division, Pretoria, Constantinides J, 22 May 2019) (‘Chisuse High Court’). 178