Many of our clients ask us what the process and legality is behind the retention of citizenship application with Home Affairs. We have all heard of people who have not followed the process and lost their South African citizenship. Below we provide some clarity on the latest updates:
The Supreme Court of Appeal of South Africa recently issued a ruling that allows South Africans to retain their citizenship even if they acquire a second nationality. This decision, which occurred on June 13, 2023, has important implications for South African expatriates.
Since the establishment of South African citizenship law in 1949, there have been restrictions on dual nationality. Prior to that, individuals born in most parts of the British Empire, including South Africa, were considered British Subjects. However, from October 6, 1995, to June 13, 2023, adult South Africans who voluntarily acquired citizenship of another country had to seek government permission to retain their South African citizenship. Exceptions were made for those who acquired a second nationality through descent, such as having a father born in another country.
Unfortunately, many South Africans, both within the country and overseas, were unaware of the requirement to obtain permission before acquiring a second nationality, resulting in the unintended loss of their South African citizenship.
The recent ruling by the Supreme Court of Appeal states the following:
1. Section 6(1)(a) of the South African Citizenship Act 1995, which mandated seeking permission for dual nationality, is deemed unconstitutional and has been invalid since its inception on October 6, 1995.
2. South African citizens who lost their citizenship due to the operation of section 6(1)(a) of the 1995 Act are now considered to have never lost their citizenship.
The Supreme Court clarified that no additional legislation is required for the ruling to take effect, and there is no grace period before the changes are implemented. Assuming the judgment is approved by the Constitutional Court, those affected will soon have the opportunity to reapply for South African passports.
This means that any South African citizen who lost their citizenship between October 6, 1995, and June 13, 2023, as a result of acquiring another country’s citizenship without obtaining prior permission from the Department of Home Affairs, is now reinstated as a South African citizen.
It is important to note that citizenship of any country carries certain constitutional obligations, such as voting rights or compulsory military service. Additionally, holding citizenship in one’s country of birth may have implications for tax domicile or conflicts with dual nationality regulations in other countries. Therefore, it is advisable for affected individuals to seek professional advice to navigate these matters.
Here are some the practical implications, based on our understanding:
1. If an adult South African citizen voluntarily acquired a second nationality before October 6, 1995, the Department of Home Affairs may still require proof of permission to hold dual nationality. When renewing an expired or expiring South African passport, the department may inquire about the acquisition of a second nationality and request the permission letter, if applicable.
2. If an adult South African citizen voluntarily acquired a second nationality after October 5, 1995, the Department of Home Affairs should generally no longer require the permission letter (as per the new ruling). Therefore, when renewing an expired or expiring South African passport, the department should not request the permission letter under such circumstances.
It’s important to understand that this article provides a general overview and should not be considered a comprehensive interpretation of the law. Seeking professional advice is recommended to address individual circumstances and concerns.