On Tuesday, the Constitutional Court heard arguments from the DA that sought to confirm a ruling by the Supreme Court of Appeal (SCA) that the government cannot remove someone’s citizenship simply because they are also a citizen of another country.
The roots of this case go back more than a decade. The Home Affairs Ministry, currently headed by the DA’s Leon Schreiber, did not argue in the case, but simply said in court it would abide by its decision.
This followed an earlier decision by his predecessor, the ANC’s Dr Aaron Motsoaledi. While he had first opposed the case, before the election this year, he had said publicly he would not oppose the ratification of the SCA’s judgment by the Constitutional Court.
Legally, one of the questions at the heart of the case is whether the minister of Home Affairs has the power to make a decision that is so important to a person’s life.
Under the law as it is currently, a South African who voluntarily becomes the citizen of another country while an adult and not through marriage (or birth, or what some countries’s citizenship laws refer to as “blood”) has to apply to the Minister of Home Affairs for permission to retain their South African citizenship.
It appears that in some cases this has been granted, and in some cases not. What matters legally is that there are no clear criteria for these decisions. It appears it was simply the luck of the draw.
‘Recipe for capricious decisions’
This is why the SCA has already ruled against the current legislation. It was always going to be the case that one person should not be able to make such an important decision.
As the court put it, this “is a recipe for capricious decision-making, without the specification of legitimate objects”.
This means that the Constitutional Court is likely to order that people can be both citizens of South Africa and another country.
This is in keeping with global trends, as it appears more countries now allow this. By at least one measure, 76% of countries have “acceptance” of expatriate dual citizenship.
At the same time, it appears likely that more and more South Africans have dual citizenship. Many years ago it would have been expected that the DA would defend dual citizenship while the ANC might oppose it.
But as our society has changed and opportunities have opened up, so more and more people born here have travelled.
This probably affects the elite in our society more than other people. Leaders in political parties may well have family members who live in other countries and have dual citizenship. Or aspire to it.
And they might well have some sympathy with those who have found their dual nationalities being used against them.
People from as different backgrounds as former Prasa CEO Zolani Matthews and current deputy NPA head Anton du Plessis have had their security clearances denied simply because they were dual citizens. In both cases it appears they were the victims of mischief.
As a result, the idea of restricting someone to just being a citizen of South Africa may feel simply, very Twentieth Century.
In some ways it is surprising, considering all the discussions about identity that make up our politics, that we have never had national leaders claiming some people are “more South African” than others.
Certainly, it is the kind of claim that would have huge political power, and could be used to win votes. And yet this hasn’t happened.
This may be because of the historic insistence by the ANC that it governs for everyone. In other words, this is an offshoot of its policy of non-racialism, that “South Africa belongs to all who live in it”.
Divisive
It could also be a reflection of the fact that a real argument about who is “more South African” would be incredibly divisive.
This means that those who campaign on identities based on ethnicity have the most to gain from such a debate, while those who campaign across ethnic identities have the most to lose.
But this also means that the sheer diversity of our society provides a check on parties that want to make this an issue. It would be impossible to win a majority of votes by making such a claim because it would mean excluding appealing to broader groups of people.
But this does not mean the issue will go away completely.
There will always be those who argue you can only be “loyal” to one nation state, and that performing any act for another nation state could be disloyal.
One example of this may be South African citizens who are also citizens of Israel.
In December last year, the government issued a statement saying any South Africans who fought for the Israel Defense Forces could be violating South African law.
Of course, this was primarily aimed at showing support for Palestinians who are under Israeli attack in Gaza. But it still shows some of the tensions that can arise through dual citizenship.
This case, and the issues of citizenship it generates, may well have resonance with the recent increase in the expression of xenophobic sentiment.
Issues around migration and people who were not born in South Africa, but are part of “All who live in it” have become fodder for some groups and some politicians.
Read more: Hypocrisy Galore — Miss SA is a playing field for cheap xenophobic exploits and ugly spectacles
The decision by the former Cabinet and the former Home Affairs minister Dr Aaron Motsoaeldi to end the Zimbabwean Exemption Permit, and the legal action that followed, led to many discussions about foreign nationals living here.
The current spate of deaths of young children after eating food bought from spaza shops has led to claims that foreign nationals are responsible.
It would be foolish to think that groups that espouse xenophobia will not one day claim that dual citizens are not “truly South African”.
That said, our society is changing in other ways too.
Just as it is now accepted as wrong to judge someone based on their ethnicity, race or gender, so judging someone simply on where they were born may come to be seen as wrong.
And many, many people in our society are aware that they are plugged into international networks. They may spend their working hours in meetings with people around the world.
The recent publication of regulations for “digital nomads”, allowing people working in other countries to live here, is an official recognition of this trend.
As a result, the concept of the nation state appears more and more like the fiction it is.
While democracies change and evolve, so arguments about citizenship will change too. And this case might be an important step down the road to a much looser definition of what it means to be South African. DM
This article was updated on 7 November at 13H10 to more accurately reflect the correct interpretation of the Citizenship Act as it applies to how people become citizens of a second country.