Study Notes: CPD1501 - Citizenship, Public Participation and Democracy

Module Preface: Introduction and Orientation to CPD1501

• Welcome and Scope: This module, titled "Citizenship, Public Participation and Democracy" (CPD1501), is a foundational legal course for the paralegal diploma and other legal developments at the University of South Africa. It covers recent legal developments in South Africa since the transition to democracy in $1994$.

• Purpose: The primary goal is to enable students to identify and evaluate concepts relating to citizenship, democracy, and the South African Constitution. It equips students with theoretical knowledge and skills to provide solutions for clients in paralegal, public sector, and private practice environments.

• Learning Outcomes: Upon completion, students should be able to apply democratic principles to practical situations and understand the role of public participation in a democratic state.

• Study Materials: There is no prescribed textbook; the study guide is self-contained. Students are required to have a copy of the $1996$ Constitution. Interaction via MyUnisa is mandatory as this is a blended module.

• Structure: The guide is divided into two parts:

  • Part A: Citizenship Law (Study Units $1$ to $4$).

  • Part B: Democracy and Public Participation (Study Units $5$ to $8$).

Part A: Glossary of Key Terms

• Act: Legislation, such as the Citizenship Act $88$ of $1995$ (Zulu: Umthetho wendlu yesishayamthetho).

• Citizenship: The legal relationship between a person and a state (Zulu: Ubuhlobo phakathi komuntu kanye nezwe lakhe).

• Constitution: A system of fundamental principles by which a nation is governed (Zulu: Umthethosisekelo).

• Descent: Derivation from an ancestor or extraction; passing from a higher to a lower degree (Zulu: ubuzwe obutholakala ngobuhlobo phakathi komuntu namadlozi akhe).

• Extradition: The surrender of an alleged fugitive from justice or criminal by one state to another (Zulu: Ukubuyisela umuntu ezweni lakhe nokuyilapho asolwa ngokuphula umthetho).

• Ibid: Meaning the same author and the same page number previously referred to (Zulu: Ngezinhloso zalencwadi, lokhu kuchaza ukuthi umbhali noma okufanayo okukhulunywe ngakho ngenhla).

• Naturalisation: To grant a foreigner the rights and privileges of a citizen (Zulu: Ukuthola ubuzwe ngokuziphatha kahle ezweni olihambele).

• TBVC states: Former independent homelands during the apartheid era: Transkei, Bophuthatswana, Venda, and Ciskei (Zulu: Ohulumeni ababezimele ngaphansi kweningizimu ne afrika ngesikhathi sobandlululo).

Study Unit 1: Legislative History and Acquisition of Citizenship

1.1 Introduction to Citizenship Law

• Citizenship determines a person's legal status and relationship with the state.

• The South African Citizenship Act $88$ of $1995$ (hereafter "Citizenship Act $1995$") defines the current legal framework.

1.2 Legislative History

• Pre-1949: No formal South African citizens existed; individuals were either "British subjects" or "Union nationals."

• South African Citizenship Act 49 of 1949: This Act instituted the formal status of South African citizenship and extended it to Commonwealth citizens through registration.

• 1962: The extension of citizenship to Commonwealth members was abolished via the Commonwealth Relations Act of $1962$, one year after South Africa became a Republic.

• 1970: The Black Homeland Citizenship Act of $1970$ was passed. It granted Africans citizenship in designated homelands (based on language, culture, or race) while simultaneously denying them the right to vote in the Republic, though they were technically not regarded as "aliens."

• 1986 & 1993: Citizenship for people from independent homelands (TBVC states) was restored via the Restoration of South African Citizenship Act $73$ of $1986$ and the Restoration and Extension of South African Citizenship Act $196$ of $1993$.

• Interim Constitution of 1993: Extended citizenship to all South Africans and established entitlement to all rights, privileges, and benefits regardless of race.

• 1996 Constitution: Replaced the Interim Constitution and emphasized citizenship for all South Africans in Section $3$.

• Equality of Terms: The terms "citizenship" and "nationality" have the same practical meaning.

1.3 Acquisition of Citizenship

The Citizenship Act $1995$ provides three specific methods of acquisition:

1.3.1 Citizenship by Birth

• Scenario A: A person who was a citizen by birth immediately prior to $01\,January\,2013$.

• Scenario B: Born in or outside the Republic, provided at least one parent was a South African citizen at the time of birth.

• Scenario C (Non-citizen parents): A person born in South Africa to non-citizen parents qualifies if:

  • (a) They do not have nationality of any other country and their birth is registered under the Births and Deaths Registration Act $51$ of $1992$.

  • (b) The parents have permanent residence status, and the individual has lived in the Republic from birth until age $18$, with their birth registered locally.

• Lawful Entry Requirement: According to Watters ($2010$), "admitted into the Republic for permanent residence" implies that children of parents who entered South Africa unlawfully do not qualify for citizenship by birth, even upon reaching age $18$.

1.3.2 Citizenship by Descent

• Scenario A: A person who was a citizen by descent immediately prior to $01\,January\,2013$.

• Scenario B (Adoption): A person legally adopted by a South African citizen whose birth is registered according to Section $13$ of the Births and Deaths Registration Act $51$ of $1992$.

• Additional Requirements: The individual must enter the Republic for permanent residence before reaching age $18$. Birth must be registered within one year of the certificate issue date, unless a longer period is approved by the Minister.

• Exclusion: A person who resumes citizenship after having previously ceased to be a citizen cannot qualify for citizenship by descent.

1.3.3 Citizenship by Naturalisation

• Overview: Occurs when a foreigner is granted a certificate of naturalisation by the Minister.

• Categories:

  • Status held prior to $01\,January\,2013$.

  • Citizens of countries allowing dual citizenship.

  • Major children born in the Republic to non-resident parents who lived in SA from birth to majority and were registered under the Births and Deaths Registration Act $51$ of $2002$.

  • Certificates granted on or after $01\,January\,2013$.

• Dual Citizenship Caveat: If the country of origin does not allow dual citizenship, the applicant must renounce that citizenship first. Challenges identified by Watters ($2010$) and Masondo ($2010$) include the difficulty for refugees from war-torn states (e.g., Somalia) to obtain official renunciation documentation.

• General Requirements for Foreigners:

  • (a) Must not be a minor (unless the Minister exercises discretion upon application by a guardian).

  • (b) Admitted for permanent residence: ordinarily resident for $5$ continuous years prior to application, plus $4$ additional years within the preceding $8$ years.

  • (c) Proven good character.

  • (d) Intention to reside in SA or serve the SA Government/international organizations.

  • (e) Proficiency in one official language.

  • (f) Adequate knowledge of citizenship responsibilities and privileges.

  • (g) Declaration of allegiance.

• Exceptional Circumstances (Section 5(9)): The Minister may waive residence requirements under exceptional circumstances.

• Spouses: Spouses of citizens qualify if admitted for permanent residence and married to the citizen for the prescribed period of residence.

• Residence Calculation: Includes service outside SA on SA-licensed transport or with a spouse in government service. Excludes periods of imprisonment or periods of illegal/temporary/conditional sojourn.

Study Unit 2: Loss, Consequences, and Resumption of Citizenship

2.1 Losing South African Citizenship

Citizenship can be lost in three ways:

2.2.1 Automatic Statutory Operation (Section 6)

• Voluntary Act: A major citizen voluntarily acquires foreign citizenship (other than by marriage).

• Military Service: A dual citizen serves in the armed forces of a country while that country is at war with South Africa.

• Naturalised Citizens: Serving in a war under the flag of a country the South African Government does not support.

• Retention: A citizen can apply to the Minister to retain citizenship prior to loss/voluntary acquisition, involving a fee of $R300-00$.

2.2.2 Renunciation of Citizenship (Section 7)

• A person intentionally cancels their citizenship by making a formal declaration to accept foreign citizenship.

• Children under $18$ lose citizenship if their parent renounces, unless the other parent remains a South African citizen.

2.2.3 Deprivation of Citizenship (Sections 8 and 10)

• Naturalised citizens: If the certificate was obtained via fraud, false representation, concealment of material facts, or in conflict with the law.

• Dual citizens: If sentenced to at least $12$ months imprisonment in any country for an offense also recognized in SA, or if the Minister deems deprivation in the "public interest."

• Children: Born outside SA, may be deprived if parents lose citizenship voluntarily without retention or via deprivation.

• Constitutional Limitation: Section $20$ of the Constitution prohibits the arbitrary deprivation of citizenship. Thus, deprivation must be reasonable and justifiable under the Section $36$ limitation clause.

2.3 Consequences of Losing Citizenship

• The individual returns to their prior nationality/citizenship.

• The person is deemed a foreigner and loses temporary/permanent residence permits issued under the Immigration Act $13$ of $2002$ and its $2011$ amendments.

• Loss of citizenship does not discharge the person from duties or liabilities incurred while a citizen.

• Currie & De Waal ($2013$) note potential "statelessness" and the loss of diplomatic protection and passport rights.

2.4 Resumption of Citizenship (Section 13)

• Minors: Children born outside SA who lost citizenship through their parents can resume it if they are resident in SA and have attained age $18$.

• Adults: Those who lost citizenship through acquisition of foreign nationality, renunciation, or the former homeland laws can resume it if:

  • (i) They reside in SA permanently.

  • (ii) They obtain a permanent residence permit after naturalised status ceased.

  • (iii) The Minister is satisfied that grounds for loss/deprivation no longer exist.

• Required Documents: Forms DHA-175, DHA-52, and DHA-9 (Identity Document), two photographs, proof of permanent residence (e.g., municipal account), and a fee of $R300-00$.

Study Unit 3: Citizens’ Rights and Limitation of Rights

3.1 Citizens’ Rights, Privileges, and Benefits

• Section 19 (Political Rights): Only citizens can form political parties, recruit members, and campaign. Citizens have the right to vote and stand for office. The right to vote was extended to prisoners (August and Another v Electoral Commission and Others) and citizens abroad (Richter v Minister for Home Affairs).

• Section 21(3) (Movement): Only citizens have the right to enter, remain, and reside anywhere in the Republic. This is subject to extradition laws.

• Section 21(4) (Passport): The right to a passport is restricted to citizens.

• Section 22 (Trade/Profession): Citizens may choose their trade, occupation, or profession freely, though it can be regulated by law (e.g., passing the bar to be an attorney). This also applies to juristic persons (companies).

• Section 28(1) (Children): Every child has a right to a name and nationality/citizenship from birth to prevent statelessness.

• Diplomatic Protection: A state's action against another state on behalf of its national whose rights were injured (Fraser $2010$). Requirements: international minimum standard violation, residency/nationality in the protecting state, exhaustion of local remedies, and a denial of justice.

3.2 The Limitation of Rights (Section 36)

Rights can be limited only by a "law of general application" (clear, accessible, and precise law) that is reasonable and justifiable.

• Balancing Process Factors:

  • (a) Nature of the right: Its importance in a democracy.

  • (b) Importance of the limitation's purpose: Must be compellingly important.

  • (c) Nature and extent of the limitation: Is it a minor or serious infringement?

  • (d) Relation between limitation and purpose: Does the law actually serve its design?

  • (e) Less restrictive means: Are there alternative ways to achieve the goal with less infringement?

Study Unit 4: Immigrants, Migrants, and Refugees

4.1 Admission and Departure

• Regulated by the Immigration Act $13$ of $2002$ and its $2004$ and $2011$ amendments.

• Entry must be at a port of entry. Individuals must possess a valid passport (including minors, who also require unabridged birth certificates).

• Dual citizens must use their South African passport to enter/depart the Republic. Using a foreign passport for advantage inside SA is a criminal offense (Section 26B, Citizenship Act).

4.3 Permanent Residence Permits (PRP)

• General Conditions: The holder must not be "prohibited" (due to disease, conviction, terrorism) or "undesirable" (insolvency, fugitive status).

• Grounds for Issuing PRP:

  • (i) Holder of a work visa for $5$ years with a permanent job offer.

  • (ii) Spouse of a citizen/PR holder for $5$ years (lapses if the relationship ends within $2$ years of issue).

  • (iii) Child (under $21$) of a citizen or PR holder.

  • (iv) Foreigner with "extraordinary skills."

  • (v) Intention to establish and invest in a business.

  • (vi) Refiner resident for $5$ years certified as indefinite.

  • (vii) Retirement (pension/annuity meet minimum net worth).

• Rights of PR Holders: Entitled to all citizen rights except those Constitutionally restricted to citizens. PR holders are entitled to social security (Khosa v Minister of Social Development) and permanent employment as educators (Larbi-Ordam v MEC for Education).

4.4 Visas for Temporary Sojourn

• Visitor’s Visa: Max $3$ months (extendable to $3$ years for research/charity).

• Diplomatic Visa: For ambassadors and career diplomats.

• Study Visa: For studies exceeding $3$ months.

• Business Visa: To establish/invest in a business.

• Crew Visa: For crew members of ships.

• Medical Treatment Visa: For treatment exceeding $3$ months (no work allowed).

• Relative’s Visa: For family members of citizens/residents (no work allowed).

• Exchange Visa: For cultural/education programmes, or persons under $25$ working for $1$ year.

• Asylum Transit Visa: Valid for $5$ days to allow travel to a Refugee Reception Office.

4.5 Refugees (Refugee Act 130 of 1998)

• Requirements: A well-founded fear of persecution based on race, gender, tribe, religion, nationality, or political opinion; or seeking refuge due to external aggression/public order disturbance.

• Exclusions: Individuals who committed crimes against peace, war crimes, non-political crimes punishable by imprisonment without a fine, or those enjoying protection elsewhere.

• Cessation: Voluntarily availing oneself of home state protection, reacquiring nationality, or becoming a PR/citizen.

• Withdrawal: Based on fraud, forgery, error, or loss of status.

• Rights: Full legal protection under the Bill of Rights (excluding citizen-specific rights), access to health/primary education, and the right to seek employment (Minister of Home Affairs v Watchenuka).

Part B: Glossary of Key Terms

• By-law: A rule or law made by a local authority such as a municipality (Zulu: Umthetho noma umthetho owenziwe omasipala).

• Constitutional Supremacy: The Constitution is the highest law; all other laws must comply with it (Zulu: UMthethosisekelo ungumthetho ophakeme kunayo yonke).

• Cooperative Government: Different levels of government working together (Zulu: Amazinga ahlukene kahulumeni asebenzisana ndawonye).

• Constitutionalism: The idea that government power is derived from and limited by the Constitution (Zulu: Ukuphatha kukahulumeni ngendlela elandela umthethosisekelo).

• Democracy: Government by the people through representatives (Zulu: Inqubo kahulumeni ephakamisa ukubusa ngentando yeningi).

• Trias Politica / Separation of Powers: Division of power into Legislative, Executive, and Judiciary to prevent authoritarianism (Zulu: Ukwahlukaniswa kwaamandla wombuso ezigabeni zikahulumeni).

• Rule of Law: Government acting only in terms of the law, enforced by independent courts (Zulu: Ukubusa kukahulumeni ngokulandela umthetho).

• Sub Judice: A matter still pending in a court of law (Zulu: isalinde enkantolo yomthetho).

Study Unit 5: Introduction to Democracy and Public Participation

5.1 Concept of Democracy

• Origin: Greek demos (people) and kratos (strength). Government based on the "will of the people."

• Opposite: Dictatorship or despotic regimes where a ruler makes laws at will.

• Relationship with Power: Legitimacy comes from a mandate under the Constitution. Under apartheid, power was considered illegitimate.

5.2 Forms of Democracy

• Direct Democracy: Citizens make all decisions directly (e.g., small communities). Impractical for large modern states.

• Representative Democracy: Citizens elect representatives to make decisions on their behalf through regular elections. Characterized by political debate and party competition.

• Participatory Democracy: Individuals or representative institutions participate actively in political decisions affecting them. South Africa is considered both representative and participatory.

5.3 Principles, Risks, and Benefits

• Indispensable Features: Free/regular elections, multiparty system, universal suffrage, protection of minorities, and accountability mechanisms.

• Disadvantages: Minorities may be forced to yield to majorities; risks of wealth inequality; disorganization or inefficiency; and unrealistic public expectations.

5.4 Democracy and the Constitution (1996)

• Founding Value: Section $1$ lists democracy as a founding value. Section $36$ and Section $195$ highlight democratic principles in governance.

• Separation of Powers:

  • Legislature: Creates/amends laws (Parliament).

  • Executive: Enforces laws (President/Cabinet).

  • Judiciary: Interprets laws (Courts).

• Judicial Review: Watchdog function where courts declare unconstitutional laws/conduct invalid. Arguments for its democratic nature: the Constitution itself was negotiated democratically; it protects expressive rights; and courts merely remand unconstitutional laws back to the legislature for correction.

• Proportional Representation (Section 46): Parties gain seats based on the percentage of total votes received. This is inclusive of smaller parties.

5.5 Public Participation Details

• Importance: Enhances civic dignity, produces effective laws, and acts as a counterweight to secret lobbying.

• Lobbying: Persuading lawmakers via meetings, submissions, petitions, and media campaigns.

• Factors Affecting Participation: Limited media access, low education, geographic isolation, disinterest, or alienation from the political system.

• Advantages: Reduces apathy, restraining abuse of authority, and information dissemination.

• Disadvantages: Time-consuming, costly, potential for conflict, and risk of corruption/public official resistance.

Study Unit 6: Government in a South African Democracy

6.1 State Authority Spheres

• National Sphere: Issues affecting the whole country (defense, economic policy). Includes National Assembly and NCOP.

• Provincial Sphere: Issues affecting a specific province. Provinces have their own legislatures and can draft constitutions, provided they comply with the national Constitution.

• Local Sphere: Municipalities. They are autonomous, meaning they regulate local affairs (water, sanitation) without being mere "arms" of national government (Fedsure v Greater Johannesburg Metropolitan Council).

6.2 Branches of Government at Each Level

• National Executive: President, Deputy President, and Cabinet Ministers. Ministers initiate law and are accountable to Parliament.

• Provincial Executive: Premier and Members of the Executive Council (MECs). Premiers sign bills, call referendums, and commission inquiries.

• Local Executive: The Municipal Council. Consists of Councillors, the Mayor, and the Municipal Manager.

6.3 System Features

• Parliamentary Features: President is elected by the National Assembly and must resign if a motion of no confidence is passed. Most cabinet members must be MPs.

• Presidential Features: President is head of both state and government. Once elected, the President ceases to be a member of Parliament. The President can refer bills back to Parliament based on constitutionality.

6.4 Cooperative Government (Sections 40 and 41)

• Spheres are "distinctive, interdependent, and interrelated." They must cooperate in good faith, consult one another, and coordinate legislation.

• Intergovernmental disputes must be settled through reasonable efforts before approaching a court.

Study Unit 7: Public Participation in National Government

7.1 Participation in Law-Making

• Duty to Facilitate: Legislatures must provide meaningful opportunities for participation and provide access to information.

• People’s Assembly: A joint venture between Parliament and provincial legislatures specifically for marginalized communities.

• Access to Power: Allows the public to give evidence, submit petitions, and attend committee sittings. Committees can only exclude the public if reasonable under Section $36$.

7.2 Participation in Policy-Making

• Law vs. Policy: Laws are enforceable standards. Policy is a set of goals/plans. Policy often precedes law.

• Methodology: Media pressure, Izimbizo (municipal consultative meetings), green/white papers.

• Stages:

  • Stage 1: Party conference debated policy goals.

  • Stage 2: Minister drafts a Green Paper (key issues/alternatives) for public comment.

  • Stage 3: Policy finalized as a White Paper (basis for legislation) and adopted by Parliament.

  • Stage 4: Bill (draft law) is tabled, potentially amended by public comment, and becomes an Act after the President’s signature.

7.3 Chapter 9 Institutions

Independent bodies established by the Constitution to strengthen democracy:

• Public Protector: Investigates improper conduct in state affairs.

• Auditor General: Audits state financial management.

• Electoral Commission: Manages elections.

• Other watchers: Special investigating units, the media, and political parties.

Study Unit 8: Provincial and Local Public Participation

8.1 Provincial Level (Section 118)

• Mandates provincial legislatures to facilitate public involvement. Meetings can only be held in camera (closed) for Budget announcements, sub judice matters, or public safety issues.

• Case: Doctors for Life International v Speaker of the National Assembly found statutes invalid because the NCOP/provinces failed to facilitate public involvement.

8.2 Local Level (Section 151)

• By-laws: No by-law passes until council members receive notice and the public has an opportunity to comment. Final by-laws must be published in the provincial official gazette.

• Systems Act (Sections 16/17): Requires community participation in IDP (Integrated Development Plan) development, budget assessments, and performance management.

8.3 Traditional Leadership

• History: Colonial policy (Black Administration Act $38$ of $1927$) turned autonomous chiefs into government functionaries. Historically, they ruled through councils and popular assemblies.

• Constitutional Recognition (Section 211/212): Recognizes status and role of traditional leadership under customary law, subject to the Constitution. Allows for National and Provincial Houses of Traditional Leaders.

• Transformation: The Traditional Leadership and Governance Framework Act $41$ of $2003$ requires traditional councils to adapt to the Bill of Rights (e.g., $33.3\%$ women representation, $40\%$ elected members).