'Arbitrary & Overnight Deprival Of Citizenship Against Rule Of Law': South Africa Constitutional Court Reinterprets Its Citizenship Amendment Act [Read Judgment]

The Constitutional Court of South Africa recently reinterpreted the country's Citizenship Amendment Act of 2010, which had drastically changed the definition of 'citizenship by descent', by holding that persons born in other countries, before or after the commencement of the Amendment Act, are entitled to South African citizenship as long as one of their parents is South African. The Gauteng Division of the High Court of South Africa had declared section 2(1)(a) and section 2(1)(b) of the South African Citizenship Act of 1995, as amended by the South African Citizenship Amendment Act 17 of 2010. Though it did not confirm the High Court declaration, it reinterpreted the Act and saved many persons from the risk of arbitrary and overnight deprival of Citizenship.Justice Khampepe authored the unanimous judgment for the nine judge Constitution bench.The 2010 Amendment drastically changed the definition of Citizenship by Descent. The applicants, who challenged these provisions are having one of their parents as a South African citizen at the time of their birth (they were born before 2010 amendment came into force). They contended that by not including a provision which retains the citizenship of those who acquired citizenship by descent in terms of 1995 Act, the section 2(1) of the amended Citizenship Act has the effect of stripping those individuals of their South African citizenship.Pre-Amendment Citizenship by Descent Law Before its amendment in 2010, a person could acquire citizenship by descent in the following ways: First, if they were a citizen by descent immediately prior to the commencement of the 1995 Citizenship Act, they would remain so. Secondly, a person could acquire citizenship by descent if they were born outside of South Africa and one of their parents was a South African citizen and their birth was registered.Thirdly, if a person was born outside of South Africa and one of their parents had resumed South African citizenship and they had entered South Africa to reside in the country permanently, that person would be a citizen by descent. Fourthly, a person would acquire citizenship by descent if they were born outside of South Africa and they had subsequently been adopted by a South African citizen in terms of the Child Care Act and their birth was registered. Changes brought by 2010 AmendmentBy the amendment Act of 2010, Section 3, which dealt with citizenship by descent was altered and the meaning of "citizen by descent" was modified to apply to only those who have been adopted in terms of the Children's Act by a South African citizen. Section 2, which dealt with 'citizen by birth' was also amended to read (1) Any person— (a) who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010, 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, shall be a South African citizen by birth.Interpretation of "Any Person Who Is Born" The issue considered by the Court was whether the words "is born" can be interpreted to apply to those born before the commencement of the 2010 Amendment? The court observed: "The word "is" would generally be used to refer to the present tense and the word "was" in relation to the past tense. The term "is born", however, can also correctly be used to describe a state of existence. Thus, the phrase "who is born in or outside of South Africa [to a South African parent]" is stative: it is used to connote the condition or status of a person and does not indicate a tense. It describes a state of being, in the same way that references to a person who "is married", "is South African" or "is adopted [by a South African parent]" similarly connote states of existence. In this form, the word "is" is used to link the person (subject) with the complement, "born in or outside of South Africa [to a South African parent]", to identify an existing condition. It is evident that this interpretation, applying also to those born before the commencement of the 2010 Amendment, is grammatically sound and would be the interpretation that is most in line with section 39(2) in that it does not arbitrarily deprive persons of their citizenship overnight. In this regard, whilst "any person who was, is or will be born" may be the more comprehensive form of the phrase, "any person who is born" similarly includes all persons born yesterday, today and tomorrow. This is not only a reasonable construction of the text, but also a constitutionally compliant one, in contrast to that which gives the word "is" a narrow interpretation." The court observed that the other narrow, prospective-only interpretation 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...

'Arbitrary & Overnight Deprival Of Citizenship Against Rule Of Law': South Africa Constitutional Court Reinterprets Its Citizenship Amendment Act [Read Judgment]

Ashok Kini

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