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

Five applicants challenged the constitutionality of section 2(1)(a) and (b) of the South African Citizenship Act 88 of 1995, as amended by the South African Citizenship Amendment Act 17 of 2010. Four applicants were born outside South Africa to South African parents before the 2010 Amendment came into effect on 1 January 2013. Under the pre-amendment Act, they would have qualified for citizenship "by descent" if their births had been registered as required. However, for reasons beyond their control, their births were not registered. The applicants argued that the 2010 Amendment deprived them of citizenship or prevented them from acquiring it. The respondents (Department of Home Affairs) failed to file answering affidavits in the High Court despite being given multiple opportunities. The High Court declared section 2(1)(a) and (b) unconstitutional and granted declaratory relief to four of the five applicants (excluding the second applicant due to insufficient evidence).

• Whether section 2(1)(a) of the amended Citizenship Act unconstitutionally deprives persons who acquired citizenship 'by descent' under previous legislation of their citizenship
• Whether section 2(1)(b) of the amended Citizenship Act unconstitutionally operates only prospectively, excluding persons born before 1 January 2013 from acquiring citizenship by birth
• Whether the phrase 'who is born' in section 2(1)(b) should be interpreted to include persons born both before and after the commencement of the 2010 Amendment
• Whether it is appropriate to grant consequential relief directing the Director-General to register the applicants as citizens and issue necessary documents
• Whether the High Court properly exercised its discretion in refusing the respondents' late request for postponement

1. The High Court's order declaring section 2(1)(a) constitutionally invalid was not confirmed. 2. The High Court's order declaring section 2(1)(b) constitutionally invalid was not confirmed. 3. The following persons were declared South African citizens: (a) Yamikani Vusi Chisuse; (b) Martin Ambrose Hoffman; (c) Emma Angelique Dullaart; and (d) Amanda Tilma. 4. The Director-General of the Department of Home Affairs was directed to register the births of the persons in paragraph 3, enter their details into the population register, assign them South African identity numbers and issue identity documents and birth certificates to them. 5. The respondents were ordered to pay the costs of the applicants in the Constitutional Court, including costs of two counsel.

The binding legal principles established are: (1) The phrase "who is born" in section 2(1)(b) of the South African Citizenship Act 88 of 1995 (as amended) is stative and describes a state of being, not a tense. It therefore applies to any person born to a South African parent, regardless of when they were born (before or after the commencement of the 2010 Amendment). (2) Section 2(1)(b) must be interpreted to mean that any person who is a child of a South African citizen is entitled to citizenship by birth, regardless of when or where that person was born. (3) Where statutory language is reasonably capable of a constitutionally compliant interpretation that avoids depriving persons of citizenship, courts must adopt that interpretation in fulfilment of their section 39(2) obligations. (4) The presumption against retrospectivity does not apply where an interpretation preserves rather than destroys vested rights - it applies only to interpretations that abolish or curtail existing rights. (5) In citizenship matters, where the legal requirements are satisfied and no discretion is involved, courts may appropriately grant mandatory relief directing officials to register citizenship and issue necessary documents, without impermissibly breaching separation of powers.

The Court made several important observations: (1) The 2010 Amendment appears to create an anomaly by providing citizenship to children of foreign nationals with permanent residence while seemingly excluding children born to South African parents outside South Africa - this would be "incongruous and irrational". (2) The High Court failed to provide adequate reasons for its finding of constitutional invalidity, placing the Constitutional Court in an "invidious position" - courts must provide full reasons before declaring legislation invalid. (3) Government is "not an indigent or bewildered litigant" and must meet procedural requirements - "It is the Constitution's primary agent. It must do right, and it must do it properly." (4) Citizenship is fundamental to identity, belonging, security, and full participation in society - it is "not just a legal status". (5) The Constitution was designed to ensure a "radical and transformative departure" from apartheid's discriminatory citizenship laws. (6) While certain rights adhere only to citizens, courts must be cautious not to overemphasize citizenship, as "South Africa belongs to all who live in it" and most Bill of Rights protections extend to everyone. (7) Courts should not engage in "strained readings" that amount to rewriting legislation, as this offends the rule of law requirement that law be "clear and ascertainable".

This judgment is significant for several reasons: (1) It demonstrates the constitutional imperative to interpret legislation in a manner that avoids depriving persons of citizenship, particularly given South Africa's history of discriminatory citizenship deprivation under apartheid. (2) It establishes important principles of statutory interpretation, particularly regarding the interpretive approach to stative language ("who is born") and the presumption against retrospectivity. (3) It clarifies that the presumption against retrospectivity does not apply where an interpretation preserves rather than destroys vested rights. (4) It reaffirms the court's section 39(2) constitutional obligation to interpret legislation consistently with the Bill of Rights where reasonably possible. (5) It reinforces that courts may grant direct consequential relief against the Executive where necessary to vindicate constitutional rights, without impermissibly breaching separation of powers. (6) It emphasizes that citizenship rights do not depend on executive discretion but constitute questions of law. (7) It provides guidance on the treatment of litigants (including government) who fail to comply with court orders and procedural requirements.