The Apex court will surely right this legislative wrong?

A recent article by Gary Moore published by PoliticsWeb on 26 January 2023 alerted the country to the fact that thousands of South Africans continue to be peremptorily stripped of their citizenship, many if not most without knowing it. The full extent of the violations of the rule of law and of fundamental rights flowing from this horrendous state of affairs is even more concerning:

The Supreme Court of Appeal (SCA) will this month hear an appeal regarding the constitutionality of section 6 (1) of the Citizenship Act under which, as in the Apartheid past, South Africans are routinely deprived of their citizenship and other rights associated with it.

The South African Constitution was specifically designed to prevent repugnant laws of this nature from ever seeing the light of day, let alone from actually being promulgated. It seems however, that the opposition may have been asleep at the wheel when this Act was passed. Even the Minister of Home Affairs at the time Prince Mangosuthu Buthelezi resigned, in part because of such legislation.

The whole of Section 20 of the Constitution consists of a single sentence: “No citizen may be deprived of citizenship.”

Our country is founded upon the supremacy of the constitution and “the rule of law”. The rule of law is a complex concept with a long history, but may simply be described as the opposite of “the rule of man”. When government officials are given discretion to subjectively decide when, if and how a law is to be applied, we have then descended into “the rule of man”.

Laws that permit a government official to decide for example, what is in “the public interest” are anathema to the rule of law. What Hendrik Verwoerd thought was in the public interest and what Nelson Mandela thought was in the public interest were clearly two entirely different things. For that reason, laws that meet constitutional muster do not grant wide discretion to the responsible officials. On the contrary, they give very specific, narrowly defined guidance so that little or no personal discretion can be exercised, ensuring that rule is always by the law and not by the whim or caprice of an individual.

In the most egregious affront to the rule of law, Section 6 (1) of the Citizenship Act states that South African citizens wishing to obtain a second citizenship must first apply to the South African Minister of Home Affairs for permission to retain their South African citizenship, and empowers the minister in his or her sole discretion “if he or she deems it fit” to grant such permission. Moreover, Section 8 (2) (b) states that the Minister “may by order deprive” a South African citizen who has a second citizenship of his or her South African citizenship if the Minister believes that it is “in the public interest” to do so.

The loss of citizenship means the simultaneous loss of many other constitutional rights along with it. For example, the right to reside in South Africa, the right to work in South Africa, the right to choose one’s occupation, the right to vote, and the right to be elected to public office are all denied to persons who are deprived of their South African citizenship.

It is indeed barely believable that a law that deprives citizens of so many rights simultaneously and which flagrantly flies in the face of the foundational rule of law requirements of our Constitution could possibly populate our statute book.

Nonetheless, what makes this matter even more concerning, is that the Pretoria high court judge who heard this case (Judge Narandra Jody Kollapen) in his infinite wisdom not only upheld this law but denied the applicants the right to appeal against his decision. Moore has pointed out the profound flaws in the judge’s reasoning. Even if, however, his reasons for decision were the most rigorous and sound, one would have thought that a judge of the South African bench would realise that a lower-court finding that so decisively affects so many of the constitutionally entrenched rights of thousands of South African lives, past, present and future, should surely be ratified by the most senior courts in the land.

The applicants in this case were forced to endure further costs and delays by having to apply to the SCA for consent to appeal against Judge Kollapen’s decision. This consent was of course, granted. However, perhaps the delay served to mitigate the risk of Judge Kollapen having to explain an appealed or even overturned case on his resume when recently applying for and being granted a seat on the Constitutional Court benches.

The SCA will shortly hear this appeal and, if it overturns Judge Kollapen’s decision and declares Section 6(1) to be invalid, its ruling will ultimately go to the Constitutional Court for ratification, at which time Judge Kollapen will no doubt be required to recuse himself.

The university of Lucerne has recently published findings that show a majority of the world’s countries today permit and sometimes even actively encourage dual citizenship. Researchers have found that persons who make use of such facilities often introduce greater skills, expertise, knowledge, opportunities and wealth to the country. Australia is one such country, notwithstanding the fact that their constitution, unlike ours, does not expressly stipulate that citizenship is an entrenched fundamental right. Other such countries include Germany, Poland, Portugal, Greece, Mauritius, Congo, Italy, Kenya, Nigeria and Namibia.

It is time for South Africa not only to finally move away from its Apartheid legacy, but to pass laws that actually comply with its own Constitution.

Dr Brian Benfield

Dr B C Benfield, Retired Professor, Department of Economics, University of the Witwatersrand.

Publish date: 16 February 2023
Views: 25 376

Dr Brian Benfield, rule of law, Constitution, citizenship, Rule of law / Law

The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.

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