Issued by Shanees Nkandu on behalf of the FW de Klerk Foundation on 13/05/2025

Introduction

The FW de Klerk Foundation’s Human Rights Report Card, 2024, recently examined the health of the various fundamental rights entrenched in the South African Constitution. Amongst other rights, the Constitution firmly protects the right to citizenship: Under section 20, no citizen can be deprived of their citizenship. Furthermore, section 3 establishes a shared national identity, guaranteeing equal rights, privileges and benefits, as well as duties and responsibilities, for all citizens.

Lost citizenship restored

The South African Citizenship Act, 1995, governs the acquisition, loss and restoration of citizenship. In 2023, the Supreme Court of Appeal (“SCA”) ruled that section 6(1)(a) of the Act was unconstitutional as it automatically stripped adult South Africans of their citizenship upon them acquiring another nationality. The court declared this provision invalid from its inception, meaning individuals who had lost their citizenship under this law were deemed never to have lost it. On 6 May 2025, the Constitutional Court confirmed the SCA’s order when it handed down judgment in the case of Democratic Alliance v Minister of Home Affairs and Another.

Citizens with IDs

In 2024, the Department of Home Affairs cleared a backlog of almost 250 000 applications for Identity Documents (“IDs”). The Department attributed this to a change in IT service providers.  IDs enable citizens to open bank accounts, apply for jobs and qualify for government services. The Department also recorded an uptick of the number of Smart ID’s issued between 1 October and 31 December 2024: With nearly one million issued (an overperformance of 69%). IDs enable citizens to open bank accounts, apply for jobs and qualify for government services. The onerous requirements to obtain birth certificates have, however, left many children legally unrecognised.

Developments with ID documents

The Department recorded an uptick of the number of Smart ID’s issued between 1 October and 31 December 2024, whereby nearly 970 543 South Africans obtained these secure documents. The push to transition from the green ID books to the smart IDs was a move to combat longtime issues of fraudulent identity documents and the wrongful blocking of IDs.

New laws to come:

The White Paper on Citizenship, Immigration and Refugee Protection, 2023, was opened for public comment until January 2024. It highlighted critical challenges within the Citizenship Act, 1995, Immigration Act, 2002, and Refugees Act,1998. Among the primary concerns was the lack of differentiation between South African citizens by birth and those who had acquired citizenship through naturalization in the National Population Register. Cabinet approved the White Paper on 10 April 2024 to guide drafting of new legislation in this area.

Conclusion:

The Constitutional Court ruling on citizenship loss restored this fundamental right to many affected citizens. The proposed policy reforms, particularly the new legislation to be guided by the White Paper, reflect an effort to streamline the governance of inter alia citizenship. However, the effectiveness of these reforms will depend on their implementation, sustained stakeholder engagement and the resolution of longstanding inefficiencies within the Department. If successfully executed, these measures could go a significant way towards fulfilling the state’s duty to respect, protect, promote and fulfil South Africans’ right to citizenship (section 7 of the Constitution). For more information on the health of this important right, see the FW de Klerk Foundation’s Human Rights Report Card, 2024.