The Constitutional Court said two subsections of the South African Citizenship Amendment Act could be read so that those born to a South African parent, in or outside SA, could acquire South African citizenship.
The Constitutional Court on Wednesday ordered the department of home affairs to register the births of four people that it declared were South African citizens, and that they be issued with IDs.
However, the court refused to confirm orders of the high court in Pretoria, which had declared that two subsections of the South African Citizenship Amendment Act of 2010 were constitutionally invalid.
The Constitutional Court reasoned that the 2010 act could be read in a constitutionally compliant manner so that those born to a South African parent, in or outside SA, acquire or retain South African citizenship.
Five people who were born in various countries in Africa from 1969 to 2006 brought an application before the high court in 2016 in which they sought an order that they be declared South African citizens.
The department had failed to recognise their citizenship but did not provide adequate reasons for this denial.
The five each provided evidence before the high court that one of their parents was a South African citizen at the time of their birth. The high court accepted the applicants’ submissions, with the exception of those of one applicant.
Apart from an application to be declared South African citizens, the five also sought an order declaring two sections of the 2010 Amendment Act to be unconstitutional.
The department failed to respond to the application, resulting in the matter being set for hearing in May last year on an unopposed roll.
The court granted four of the five people the relief they sought; that they be declared South African citizens, that the department register their births, enter their details into the population register, assign them South African identity numbers and issue them South African identity documents and/or identity cards as well as birth certificates.
In addition to this, the high court declared the two sections unconstitutional.
According to the constitution, the Constitutional Court must confirm any order of invalidity made by the high court, before that order has any force.
In a unanimous judgment written by justice Sisi Khampepe, the court said the high court provided sparse reasons for its findings of constitutional invalidity.
“This seems to have been a consequence of the (minister of home affairs and the home affairs department’s) dereliction of their responsibility during the proceedings in the high court.
“Regardless, it is still incumbent on a court, operating within our constitutional dispensation, which embeds the separation of powers principle, to provide full reasons before declaring legislation to be invalid,” Khampepe said.
Khampepe said this was unfortunate and hoped that failure to provide reasons when legislation was declared invalid did not become a regular practice by lower courts. She said an interpretation of the 2010 act that only operates in favour of those born after its commencement is the one which is at variance with the constitution.
“It is this narrow, prospective-only interpretation that strips citizenship rights from a great number of people in the most unfair and unjustified manner.
“It is that interpretation which would render the operation of the 2010 amendment retrospective by wiping out citizenship that existed under the previous acts without replacing it with another form of citizenship, and by taking away citizenship rights without retaining those previously-acquired rights,” Khampepe said.
Khampepe ordered the department to pay the costs of the four.