Yamikani Vusi Chisuse & Others v Director-General, Department of Home Affairs & Another

Parties (including notable third parties)

Applicants: Yamikani Vusi Chisuse (First Applicant), Elizabeth Mafusi Nthunya (Second Applicant), Martin Ambrose Hoffman (Third Applicant), Heinrich Dullaart N.O. (Fourth Applicant), Amanda Tilma (Fifth Applicant) Respondents: Director-General, Department of Home Affairs (First Respondent), Minister of Home Affairs (Second Respondent)

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Summary of Facts

The case concerned the effect of amendments to the South African Citizenship Act 88 of 1998 (‘Citizenship Act’) on the Applicants. The Applicants were born outside of South Africa to a South African parent, although the High Court found there was insufficient evidence to establish those circumstances in respect of the second applicant.

The Citizenship Act was amended by the South African Citizenship Amendment Act 17 of 2010.  The amendments included changes to the definitions of acquisition of citizenship by birth and by descent.    
Section 2(1) of the amended Citizenship Act relevantly provided as follows:

“2. Citizenship by birth

(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.”

The Applicants challenged the amendments in Section 2(1) of the Citizenship Act in the High Court of South Africa.  The Applicants submitted that the amendments resulted in their entitlement to South African citizenship being extinguished.  The Respondents failed to file an affidavit in response and the matter before the High Court was therefore heard unopposed.

The High Court accepted the Applicants’ case, holding that the amendments were unconstitutional in their original form and ordered further amendments be read into Section 2(1) to clarify that the section applied both retrospectively and prospectively.

The applicants brought confirmation proceedings before the Constitutional Court of South Africa in relation to the High Court’s judgment.

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Legal Arguments

Legal Arguments by the Applicants

The Applicants argued that the amendments to the Citizenship Act were unconstitutional as they automatically deprived the applicants of their right to South African citizenship which they were entitled to under the pre-amendment legislation.

Firstly, the Applicants submitted that section 2(1)(a) of the amended Citizenship Act only provided for individuals entitled to citizenship ‘by birth’, and excluded individuals entitled to citizenship ‘by descent’ (such as the Applicants), within the meaning of the pre-amendment legislation.  Secondly, the Applicants argued that ‘is born’ in section 2(1)(b) meant that the limb applied prospectively, whereas the Applicants had been born outside of South Africa before the amendments took effect.

Legal Arguments by the Respondents

The Respondents submitted that it would be preferable for the Court to interpret Section 2(1)(a) of the amended Citizenship Act such that it would extend to those entitled to citizenship ‘by descent’ under the pre-amendment legislation.  However, the Court found that argument to be untenable given the clear language of Section 2(1)(a) which referred only to citizens ‘by birth’ under the former legislation.

The Respondents opposed the Applicants’ claims to South African citizenship on factual grounds.  However, for procedural reasons the Court held that the Respondents were barred from introducing the relevant factual material before the Court as they had failed to introduce it in the original proceedings before the High Court.

Outcome

The Court unanimously held that the High Court’s orders declaring Section 2(1) of the amended Citizenship Act unconstitutional were not confirmed. The Court in its judgment set out principles of constitutional interpretation in South Africa which included that, where the text of the relevant legislation permits, the legislation should be interpreted in a manner consistent with the Constitution.

The Court held that Section 2(1)(b) of the amended Citizenship Act, properly construed, applied retrospectively as well as prospectively.  Firstly, the Court considered that this construction was supported by the text of Section 2(1)(b), as ‘is born’ does not indicate a tense and can apply to those born in the past.  Secondly, the Court considered that a prospective-only interpretation of Section 2(1)(b) would, in breach of the Constitution, lead to a great number of people arbitrarily losing their right to citizenship, including individuals, like the applicants, who had been born before the amendments took effect.  The Court noted that a prospective-only interpretation of Section 2(1)(b) would expose individuals to the risk of statelessness.

The Court also noted that in South Africa, there is generally a presumption against construing new laws to have retrospective effect where that would result in vested rights acquired under existing laws being taken away.  However, in the present case, the Court found that that presumption did not operate given that a retrospective interpretation of the amended Citizenship Act would lead to the preservation, not extinguishment, of pre-existing rights to citizenship.

For those reasons, the Court held that the Applicants (other than the second applicant) fell within the ambit of Section 2(1)(b) of the amended Citizenship Act and ordered that they be declared South African citizens.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution of South Africa	Section 167(5)
Domestic	South African Citizenship Act 88 of 1995	Section 2(1)
Domestic	South African Citizenship Amendment Act 17 of 2010

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Mihloti Basil Sherinda and Jonathan Klaaren, ‘Case Note - The South African Constitutional Court decides against statelessness and in favour of children: Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20’ (2022) 4(1) Statelessness & Citizenship Review 177

• According to the authors, the Chisuse decision is an example of the important role of the Constitutional Court of South Africa in upholding citizenship rights against persistent opposition from the South African Department of Home Affairs (‘DHA’).  The authors consider that while South African legislation is generally consistent with international standards in relation to statelessness, the DHA has a tendency to favour a restrictive approach when implementing those laws in practice.
• The authors also note that the Court’s decision: (1) clarifies the presumption against retrospectivity in statutory interpretation; and (2) displays an interpretive approach that is cognisant of the risks of childhood statelessness.