SOUTH AFRICAN CITIZENSHIP
The acquisition, loss, deprivation and resumption of South African citizenship are regulated by the South African Citizenship Act, 1995 (Act 88 of 1995), hereinafter referred to as "the Act", and the Regulations issued in terms of the Act.
There are three main forms of South African citizenship, namely:
- citizenship by birth,
- descent or
Citizenship by birth and descent are legal rights for anyone who can prove the facts of birth and parentage.
Citizenship by naturalisation is not a legal right. It can be granted or refused by the Minister of Home Affairs.
CITIZENSHIP BY BIRTH
In terms of the Act, a child born in South Africa and of which one of the parents was a South African citizen or South African permanent residence holder at the time of the child's birth shall be a South African citizen by birth in the case of births from 6 October 1995 when the Act came into operation. The position before that was governed by the South African Citizenship Act, 1949, which contained a wide range of different requirements over the years. To determine a person's claim to South African citizenship in respect of births in that era, completion of a BI-529 (Determination of Citizenship Status) is normally required.
A foreign child born in South Africa and who is adopted in terms of the Child Care Act, 1983 by a South African citizen and whose birth has been registered in South Africa is also a South African citizen by birth.
A foreign child born in South Africa and who has no claim to another citizenship (stateless) may also acquire South African citizenship by birth. Conclusive proof that the child has no other citizenship, or claim to any other citizenship is required in such cases.
A person has to prove the place where he or she was born and the date of birth.
The place must be a place within South Africa as it is now. (It no longer matters if a person was born in one of the old homelands. They are all part of South Africa again and the whole history of homeland independence and citizenship is wiped out.)
Proving a birth can be very difficult if there is no birth certificate, or if the person was not born in a hospital or clinic. We have to think hard with the client about what kind of proof might be available.
Documents which can help are:a baptismal certificate which was issued soon after the person was born. Churches usually keep a baptismal record and can issue a duplicate if the original is lost. clinic cards an affidavit from the Chief of the area where the child was born, or from another respected person in the community, who has known the family for a long time and knows the child was born there an affidavit from the owner of the farm where the child was born an affidavit from the mother's employer at the time of the birth an affidavit from the person's older sister or brother who already has an ID and is accepted as a South African citizen affidavits can be made by people who helped the mother at the birth or who were neighbours at the time of the birthBut Home Affairs is not easily satisfied if the only proof is affidavits so try to find some other kind of documents which can be attached to the affidavits.Born before 1949If the person was born before 1949, proof that the birth took place in South Africa is all that is needed to prove the right to citizenship.Born between 1949 and June 1961If the person was born between 1949 and June 1961, she or he must prove:that the birth took place in South Africa the date of birth AND that the father was not a prohibited immigrant at the time of the birth.It does not matter what the father's position is now. It is his position at the time of the birth that counts. The mother's position does not count at all.If the father was a South African citizen there is no problem. There is also no problem if he had a permanent residence permit.The problem comes if he was from another country and was working in South Africa at the time with a temporary permit. If he was classified African, it would have been impossible for him to get permanent residence between 1949 and 1961. The apartheid laws did not allow it.Born since 1995If the person was born since 1995, she or he must prove:
that the birth took place in South Africa the date of birth AND EITHERthat one of the parents was a South African citizen or a permanent resident at the time of the birth OR that the child is not entitled to citizenship of any other country.In terms of the 1995 South African Citizenship Act a child born in South Africa since 1995 is a South African citizen if one of the parents is a South African citizen, or a permanent resident.If both parents are citizens of other countries then the child will not be a South African citizen UNLESS that child is not entitled to any other citizenship at all. This can happen because different countries have different citizenship laws.
CITIZENSHIP BY DESCENT
A child born outside South Africa and of which at least one of the parents was a South African citizen at the time of the child's birth has a claim to South African citizenship by descent. The child's birth must, however, be registered in South Africa for the child to acquire South African citizenship.
CITIZENSHIP BY NATURALISATION
Foreigners wishing to acquire South African citizenship may apply for South African citizenship by naturalisation, provided the requirements of section 5 are met. The requirements for majors and minors respectively, are:
- Valid permanent residence permit or exemption.
One year's ordinary residence in the Republic of South Africa immediately prior to the application.
In addition 4 years of physical (actual) residence in the RSA during the eight years before the application (excluding the year of ordinary residence).
If married to a South African spouse, two years of permanent residence and two years of marriage to the South African spouse immediately prior to the application.
Intends to continue to reside in the Republic or falls within the further categories specified in section 5(1)(e).
- Be of good and sound character.
- Able to communicate satisfactorily in any one of the official languages of South Africa.
Have adequate knowledge of the duties and responsibilities of a South African citizen
The responsible parent can apply on behalf of the minor at any time provided the minor is permanently and lawfully resident in the Republic.
Applications must be on a duly completed BI-63 and may be submitted to any domestic office of the Department. An application for an identity document or re-issue thereof, as the case may be, must accompany the application in respect of applicants 15 years and older.
DECLARATION OF ALLEGIANCE
If the application is approved, a declaration of allegiance must be signed by persons 18 years and older. The citizenship is effective from the date the declaration is signed.
CERTIFICATE OF NATURALISATION
A certificate of naturalisation will be issued to the successful applicant as confirmation of his or her status as a South African citizen.
In terms of section 5(9) the Minister of Home Affairs may in circumstances which he or she regards as exceptional waive the residential requirements. Applications in this regard must include a full exposition of the applicant's exceptional circumstances and why early naturalisation is absolutely critical.
DEPRIVATION OF SOUTH AFRICAN CITIZENSHIP
Section 8 empowers the Minister to revoke the South African citizenship of a South African citizen by naturalisation if the certificate of naturalisation was obtained by means of fraud, false representation or the concealment of a material fact (Section 8(1)(a), or if the certificate was issued in conflict with the provisions of the Act, or any prior law (Section 8(1)(b) and in the case of a South African dual citizen, if the citizen has been sentenced to imprisonment for 12 months or more (Section 8(2)(a), or if the Minister is satisfied that revocation is in the public interest (Section 8(2)(b)).
The Minister may also revoke the South African citizenship of a South African with dual citizenship if that person has made use of his or her other citizenship or nationality for example by using the franchise or passport facilities of the other country (section 9(1)).
In terms of section 9(2) of Act 88 of 1995 the Minister may permit a South African dual citizen, in circumstances regarded by the Minister as exceptional, to make use of a foreign passport. Applications must be on a duly completed BI-862 and a prescribed fee R110-00 is payable.
LOSS OF SOUTH AFRICAN CITIZENSHIP
A South African citizen who by a formal and voluntary act acquires the citizenship of another country, automatically loses his or her South African citizenship.
Retention of South African citizenship may, however, be applied for, but must be done and be approved before acquisition of the other citizenship to prevent automatic loss of the South African citizenship. Applications must be on form BI 1664 and are subject to payment of a prescribed fee of R110-00. Applications may be lodged at any Home Affairs domestic office or if abroad, at the nearest South African Embassy or Mission.
Persons who have lost their South African citizenship under similar circumstances under section 15(1)(a) of the now repealed South African Citizenship Act, 1949 (Act No. 44 of 1949), may apply for exemption from the loss in terms of section 26(4) of Act 88 of 1995, by submission of a duly completed BI 1666 and payment of the prescribed fee of R110-00 at any Home Affairs domestic office or if abroad, at the nearest South African Mission or Embassy.
A person who has lost or has been deprived of his or her South African citizenship may apply for resumption at any Home Affairs domestic office. Application must be on a BI 175 and a prescribed fee of R115-00 is payable.
To qualify, former South African citizens by birth and descent must have returned to South Africa permanently. Former South Africans by naturalisation or registration must have a valid permanent residence permit or exemption from such permit and must have taken up permanent residence in South Africa.
A South African citizen who intends to accept the citizenship or nationality of another country, or who also has the citizenship or nationality of another country, may renounce his or her South African citizenship by making a declaration to that effect on a form BI 246 and submit the completed declaration to any Home Affairs domestic office.
The person shall cease to be a South African citizen from the moment the declaration is registered in the Department.
The minor children under 18 years of a person who has renounced his or her South African citizenship shall also cease to be South African citizens, unless the other parent remains a South African citizen.