Gupta's citizenship: a lapse in statutory compliance?

There is nothing in South Africa’s citizenship legislation which precludes the minister of Home Affairs from granting citizenship by naturalisation under exceptional circumstances. However, the minister is precluded from acting at his pleasure without judiciously considering whether there exist exceptional circumstances for granting citizenship in cases where applicants do not comply with the ordinary residence requirements for citizenship.

 The Citizenship Act requires a person applying for citizenship by naturalisation to comply with a number of conditions. These include the possession of a permanent residence permit, residence in South Africa for at least five years with permanent residence status prior to making the citizenship application, submitting proof that his or her existing country of citizenship allows dual citizenship and, if it does not – as is the case in India – then submitting proof of the renunciation of such foreign citizenship. If “exceptional circumstances” (under Section 5(9)(a) of the Citizenship Act) do apply, the only requirement that the minister may waive is the residence requirement of five years.

However, should the minister grant citizenship under Section 5(9)(a) of the Act, then he is obliged in terms of Section 5(9)(b) to table within 14 days of the opening of parliament for the next year’s sitting the names of all people to whom he granted such citizenship, and the reasons therefor. One can only suppose that the legislative intent of Section 5(9)(b) is to ratify the minister’s actions in terms of Section 5(9)(a). The nexus between (a) and (b) is not clear, but a significant relationship must exist between those two provisions, even while the Act is silent in this regard. Because the minister’s actions are political in terms of Section 5(9)(a), he is politically accountable to parliament and to the public. This is the purpose of the minister tabling any of his actions, thereby allowing them to be openly ventilated and assessed.

 Section 5(9)(b) is no doubt a constraint on the Minister’s exercise of discretionary power. Former Home Affairs Minister Gigaba’s spokesperson, Mayihlome Tshwete, has said that the granting of naturalisation certificates under exceptional circumstances is not unusual, and that such “courtesies” have been extended to prominent businesspeople and sports people in the past. However, parliamentary records suggest that the minister did not in fact comply with Section 5(9)(b). It appears that neither the Gupta family’s names nor the names of any “prominent businessmen and sport people” were tabled in parliament, as is required by law. What will be the consequence of this statutory violation of the former minister in relation to the granting to the Gupta family of citizenship, one wonders. It is exactly this lack of political accountability that has led to the current investigation over Gigaba’s granting of citizenship by naturalisation to the Gupta family.

In a democratic constitutional republic, a statutory obligation must be performed by the public administrator concerned. A lapse in compliance by a minister of cabinet of a statutory obligation raises the spectre of political unaccountability and contempt for the rule of law. It is these concerns which have raised the issue of the Gupta family’s citizenship to the level of frenzy that is currently exploding nationwide.

 by Gary S Eisenberg