Judgment on citizenship a blow for thousands of South Africans abroad

A recent judgment in the Pretoria high court has dealt a blow to potentially tens of thousands of South Africans living abroad, who were stripped of their SA citizenship when they became citizens of foreign countries.

The case, brought by the DA, argued that section 6(1)(a) of the SA Citizenship Act 88 of 1995 is inconsistent with the constitution in that it violates South Africans’ right to citizenship by automatically stripping them of it if they acquire citizenship of another country.

Judge Jody Kollapen found on August 6 that the constitution differentiated between “loss” and “deprivation” of citizenship and that the act did not deprive South Africans of their citizenship as it made provision for citizens to apply to the department of home affairs to retain their citizenship before they applied for foreign citizenship.

In theory, this should mean that South Africans do not have to lose their citizenship when acquiring the citizenship of another country. In practice, however, thousands of South Africans who move to other countries do not know they have to do this and are summarily stripped of their rights as an SA citizen without their knowledge. There is no requirement to notify the home affairs department when emigrating, and no information is readily available to warn people they have to apply to retain their citizenship when they move to another country.

Many people become aware they have lost their citizenship only when they apply to renew their SA passports abroad. Our practice receives calls weekly from distressed South Africans who desperately want assistance getting their citizenship back, and there are more than 10,000 members of a Facebook group, SA Dual Citizenship Campaign.

The processes for applying for retention of citizenship are deeply flawed. This is a challenge our office deals with regularly. Home affairs has stated that the application process takes four weeks, whereas in practice it could take six to 12 months before the Covid-19 pandemic. Since the onset of the pandemic, the department has not processed these applications at all. In short, while the act provides for them to apply for retention of their citizenship, they cannot do so now.

Applications lost

South Africans wanting dual citizenship are receiving conflicting information and unhelpful replies from public servants despite their constitutional duties as outlined in section 195, based on the principles of Batho Pele.

The recent experience of only two of my clients illustrates this: women who were born in SA but acquired British citizenship were told on attempting to renew a passport that they were no longer South Africans, and the passport would be shredded. Home affairs in Pretoria informed them this was not the case, but 10 years later the SA embassy in London again informed them they were no longer South African citizens.

While applications remain lost or in limbo, the South Africans who are affected are starting their new lives in foreign countries, assuming foreign citizenship to simplify their lives in these countries. They cannot wait years, or indefinitely, for SA’s home affairs department to approve their applications before they assume dual citizenship.

It is disappointing and troubling that the judgment is written from a narrow, academic and conservative viewpoint: it looks at this matter purely on paper and makes little effort to consider how it affects real people in the real world.

Kollapen appears inclined to protect constitutional rights in principle, but it seems not in practice. We understand that he is aspiring to a seat on the Constitutional Court and we hope that he, with all other judges, will strive to be more pragmatic in their commitment to upholding constitutional principles for the good of South Africans (and foreigners in SA).

The DA intends to make an application for leave to appeal to the Supreme Court of Appeal against the whole of the judgment and order, arguing that the high court erroneously assumed those who lost their citizenship intended to do so and that citizens seeking advice at SA embassies worldwide are often given bad advice. 

Our legal practice knows these arguments to be true: the lack of accurate, readily available information for South Africans taking up residence elsewhere in the world and the narrow and conservative application of the provisions of the act are in fact depriving South Africans of their right to citizenship.

• De Saude Darbandi is immigration and citizenship law specialist at De Saude Attorneys.