The 2010 amendments to the South African Citizenship Act 88 of 1995 has created unconstitutional barriers to obtaining South African citizenship,” says Stefanie de Saude.
The South African Citizenship Act 88 of 1995 (the Act) was promulgated and accordingly replaced the Apartheid-era Acts, bringing South African’s citizenship laws in line with international norms. The 2010 amendments to this Act, however, has created unconstitutional barriers to obtaining South African citizenship.
This is according to Stefanie de Saude, Partner at Eisenberg de Saude, a firm of attorneys specialising in South African Immigration and Nationality law, who says that the Constitution of South Africa explicitly states in Section 20, that ‘No citizen may be deprived of citizenship’. “The problem, however, is that the current amendments to the Act mean that children born to South African parents living aboard, as well as children of parents with permanent resident status in South Africa, are arbitrarily and unconstitutionally losing their right to a South African citizenship.”
Rights of South African children born aboard
The Citizenship Act of 1995 makes provision for citizenship by descent applying to any child born abroad to a South African parent. Post the amendments made to the Citizenship Act in 2010, however, citizenship by descent now only applies to children adopted by South Africans.
De Saude says that Section 3(1) (b) (i) of the Citizenship Act of 1995, as amended, biological descendants of South African citizens of any age living abroad are automatically conferred with citizenship, putting children born in South Africa and children born to South Africans living abroad on an equal footing.”
She points out, however, that if the foreign birth is not registered with the relevant South African mission in the foreign country within 30 days of birth, the child loses its right to South African citizenship. “The far more restrictive Regulation is unconstitutional, but it is yet to be challenged in a court of law. In countries allowing dual nationality, applications for citizenship by descent are for all intents and purposes an application for a late registration of a foreign birth, which can be done at any stage of child’s life.”
Rights of children emigrating with South Africans parents
De Saude explains that in terms of the recent amendments, unless an adult South African gets permission from the South African government prior to applying for citizenship of a foreign country (by some voluntary and formal act other than marriage), they will lose their dual South African citizenship.
She adds that minors under the age of 18 years old do not, as a general rule, lose their South African status even if their responsible parent acquires their foreign nationality without the Minister’s prior written consent.
The exception, explains De Saude, is where the child who has South African citizenship status was born outside of South Africa and after the Minister then lawfully deprives such child of South African status. “This is where the amended Act becomes unconstitutional.”
Right to South African citizenship of foreign children born in South Africa
“The Citizenship Act of 1995 Act provided that any person born in South Africa, and whose parent at the time of their birth was a permanent resident, that person is born a South African citizen,” explains De Saude. This position has, however, changed. She says that the recent amendments require persons in these instances to wait until the age of 18 to claim their South African citizenship status. “Only if the child is a resident in South Africa and attains the age of majority, will that child be eligible for a South African citizenship status,” she explains.
According to De Saude this is unconstitutional, as the law protects every child’s right to a name and nationality from birth and not from age of majority. “As a result of the amendments, a child that is born in South Africa to parents with a permanent resident status is effectively born a foreigner and becomes subject to the various immigration rules and regulations.
“While the more restrictive approach is aimed at correcting the badly corrupted population register of the past,” she says. “The Minister of Home Affairs should turn his attention to correcting this issue, because failure to do so may result in more people losing a basic right despite the Constitution’s prohibition on deprivation of citizenship.”
Originally published on Insurance Times and Investments, Vol 29.1, 1 January 2016.