Mulowayi v Minister of Home Affairs ISSUES Mr and Mrs Mulowayi, appealing the decision of the High Court, sought the following remedies: that the declaration of the High Court be confirmed or, in the alternative, for the suspension of the order to be lifted. 19 The legal issues for the Constitutional Court are two-fold. First, whether the High Court was correct to make an order that reg 3(2)(a) is invalid. 20 Reg 3(2)(a) of the Regulations on the South African Citizenship Act (‘Regulations’) sets the required period of permanent residency prior to eligibility for naturalisation to 10 years. 21 This period contradicts s 5(1) of the SACA, the primary legislation, where the minimum period is five years. 22 The Constitutional Court then considered whether the High Court was right to suspend the operation of its own order pending confirmation of that order by the Constitutional Court. 23 The suspension of the order left the applicants without effective relief as reg 3(2)(a), and the 10 year period, remain in force. The second issue, which is the focus of this case note, is as to the effective relief available to Gaddiel in light of the Home Affairs Department’s refusal to consider his application for citizenship. 24 HOLDING The Constitutional Court followed its own precedent, Minister of Home Affairs v Liebenberg, and found that a declaration of invalidity of a regulation does not fall within s 172 of the Constitution and does not require confirmation by the Constitutional Court. 25 On the alternative ground of appeal, the Constitutional Court gave leave to appeal and held that the High Court erred in its decision to suspend its own order. 26 The decision of the High Court suspending its own order was set aside. 27 The original order of the High Court was restored. The only relevant period to take into account when applying for naturalisation was the five-year period set out in s 5(1)(c) of the SACA. REASONING A The Law on Acquisition of South African Citizenship by Birth Prior to the 2010 amendment to the SACA, any child born to a permanent resident would be immediately considered a citizen of South Africa by birth. 28 As the 2010 19 20 21 22 23 24 25 26 27 28 ibid 8 [20]. Mulowayi (n 1) 2 [3]. Regulations on the South African Citizenship Act 1995 (South Africa). SACA (n 1). Mulowayi (n 1) 3 [1]. ibid 11 [32]. Minister of Home Affairs v Liebenberg [2001] ZACC 3, 7–9 [13] (South African Constitutional Court); Mulowayi (n 1) 10–11 [28]. Section 172(2)(a) of the Constitution requires that an order of the Hight Court invalidating primary legislation, a provincial Act, or any act of the President is without force unless confirmed by the Constitutional Court. Mulowayi (n 1) 11–12 [33]. ibid 12 [34]. The Amendment Act (n 8) came into force on 1 January 2013; SACA (n 1) s 2(2). 181