Is the automatic loss of South African citizenship for those acquiring other citizenships constitutional? Democratic Alliance v Minister of Home Affairs

Abstract

For an increasing number of people, global mobility is a feature of their lives. Employment opportunities may arise in countries far removed from one’s place of birth; one may meet a significant other and seek to re-locate. For some, new citizenships may be acquired for instrumental reasons: ease of movement, as Covid-19 national restrictions have demonstrated, often requires not only applying for permission to reside indefinitely in another country but also naturalisation; for others, it may reflect a deeper significance, representing a stronger connection to a polity to which one wishes to belong and to participate politically. What acquisition of a new citizenship does not ipso facto mean is that an individual wishes to lose the citizenship of their country of origin, to which they may retain intense and deep ties. The legal consequences of the acquisition of foreign citizenship were the subject of Democratic Alliance v Minister of Home Affairs, a 2021 case in the High Court of South Africa (Gauteng division, Pretoria). The Democratic Alliance unsuccessfully challenged the constitutionality of s 6 of the Citizenship Act 68 of 1995. This provision stipulates that adult citizens automatically (de lege) lose their South African citizenship when they ‘freely and voluntarily’ acquire another citizenship (except through marriage) without first applying for and obtaining a ministerial certificate authorising its retention. The applicants argued this policy is irrational and that it violates several