Chisuse and Others v Director-General, Department of Home Affairs and Another

The applicants were persons born outside South Africa to at least one South African parent before 1 January 2013. Under the pre-amendment South African Citizenship Act 88 of 1995, such persons could acquire South African citizenship by descent if their births were registered. Following amendments introduced by the South African Citizenship Amendment Act 17 of 2010, section 2(1)(a) and (b) appeared to omit explicit recognition of citizenship by descent acquired under prior legislation or of persons born before the amendment whose births were not registered in time. The applicants contended that this resulted in the automatic deprivation of their citizenship or the denial of vested citizenship rights. The High Court declared sections 2(1)(a) and (b) unconstitutional and invalid, read words into the provisions, and granted relief declaring most applicants to be citizens. The matter came before the Constitutional Court for confirmation of constitutional invalidity under section 167(5) of the Constitution.

The Constitutional Court did not confirm the High Court’s order of constitutional invalidity. Sections 2(1)(a) and (b) were upheld as constitutionally valid. Four applicants were declared South African citizens, and the Director-General of Home Affairs was ordered to register their births, enter them into the population register, assign identity numbers, and issue identity documents and birth certificates. The respondents were ordered to pay costs.

The case is significant for clarifying the interpretation of post-2010 citizenship legislation and affirming that citizenship statutes must be construed purposively to avoid unconstitutional deprivation of citizenship. It reinforces the constitutional protection of citizenship under sections 3 and 20 of the Constitution and underscores the judiciary’s preference for constitutionally compliant interpretation over invalidation of legislation. The judgment also highlights the importance of reasoned decisions in constitutional invalidity matters.