2022 Statelessness & Citizenship Review 4(1) adopted by the DHA, the rights available to persons in these two subcategories prior to the amendment of the 1995 Citizenship Act were extinguished and were not revived. A superficial use of the interpretive presumption against statutory retrospectivity could be used to justify the DHA’s legal position. 22 The Constitutional Court did not choose to travel the interpretive route of the DHA. Instead, by developing and employing a conceptually inclusive view of citizenship, the Constitutional Court traversed the relevant history of the statutory regime in order to more comprehensively understand the manner in which South African citizenship is and has been acquired through descent or birth. 23 Enacted in 1949, early in the apartheid era, the citizenship legislation immediately preceding the current Act provided citizenship through four mechanisms: birth, descent, naturalisation and registration. 24 Limiting itself to the first two, the Constitutional Court noted how citizenship by birth could only be acquired by two groups and how citizenship by descent was acquired through two different categories.25 In 1991, the ground of marital status — which had been relevant to both citizenship by descent and by birth — was removed as a requirement for one to be eligible for acquisition of citizenship ‘so that anyone who was born to at least one South African parent after 1949 would be entitled to citizenship’.26 Thus, at odds with the DHA’s restrictive orientation to the Constitution, an inclusive view of citizenship was central to the Court’s understanding of the rights at issue in Chisuse. The citizenship scheme of the Constitution is found in part in its ss 3 and 20.27 The former states that there is a common South African citizenship wherein all citizens are entitled to the rights, privileges and benefits of citizenship and are equally subjected to the duties and responsibilities of citizenship.28 The latter provides that no citizen may be deprived of citizenship.29 The Constitutional Court rooted its constitutional vision in history. Chisuse’s first paragraph recalls that ‘[t]he systematic act of stripping millions of black South Africans of their citizenship was one of the most pernicious policies of the apartheid regime, which left many as “foreigners in the land of [their] birth”’.30 The Constitutional Court then reaffirmed that the new South Africa granted and guaranteed its rights to ‘all who live in it’.31 Khampepe J reiterated that citizenship and equality of citizenship is important in South Africa and there should be no arbitrary distinctions: ‘[citizenship] goes to the core of a person’s identity, their sense of belonging in a community and, where xenophobia is a lived reality, to their security of person’.32 In this sense, it stands to reason that depriving one of 22 23 24 25 26 27 28 29 30 31 32 ibid 33 [71]. ibid 15–22 [35]–[45]. For legal historical accounts of South African citizenship prior to 1949, see Jonathan Klaaren, From Prohibited Immigrants to Citizens: The Origins of Citizenship and Nationality in South Africa (UCT Press, 1st edn, 2017); see also Jonathan Klaaren, ‘Historical Overview of Migration Regulation in South Africa’ in Fatima Khan (ed), Immigration Law in South Africa (Juta, 1st edn, 2018). Chisuse (n 1) 15–17 [36]–[38]. ibid 18 [39]. Constitution (n 7) ss 3, 20. ibid s 3. ibid s 20. Chisuse (n 1) 3 [1], citing Jonathan Klaaren, ‘Constitutional Citizenship in South Africa’ (2010) 8(1) International Journal of Constitutional Law 94, 95. Constitution (n 7) preamble, cited in Chisuse (n 1) [24]. Chisuse (n 1) 13 [28]. 180