Chapter 2 - Citizenship
South Africa's citizenship law
There are three ways in which a person can be a citizen:
- by birth
- by descent
- by naturalisation
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
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 birth
But 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.
In terms of the South African Citizenship Act (No. 88 of 1995) a child born in South Africa to parents where one was either a South African citizen or a South African permanent residence holder at the time of the child’s birth, will be a South African citizen by birth in the case of births from 6th October 1995 when the Act came into operation.
The position before that was governed by the South African Citizenship Act of 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 a person usually needs to complete a BI-529 (Determination of Citizenship Status).
Citizenship by descent (Not born in South Africa)
This makes provision for South African citizenship for children born outside South Africa.
If one of the child's parents is a South African citizen the child has a right to South African citizenship IF that parent registers the birth at the nearest South African embassy or consulate, or sends the proof of the birth to the Department of Home Affairs in Pretoria.
REMEMBER that citizenship by birth or descent can also be given to children who are legally adopted. They become the 'own' child of the new parents and the rules about their citizenship are the same as for children born to their natural parents. BUT the adoption must be a legal one and agreed to by a court.
See CITIZENSHIP, Checklists, Not born in South Africa
Citizenship by naturalisation
If a person is a citizen of another country but wants South African citizenship she or he can apply to the Minister of Home Affairs for Citizenship. According to the Eighth Amendment Act of the Regulations in terms of the South African Citizenship Act (1995) that came into operation on 1 April 2003, a fee may be charged for the duplication of the certificate.
These are the conditions that the person must fulfil when applying for citizenship:
- must be over the age of 21
- must have a permanent residence permit to live in South Africa
- must have lived in South Africa with that permit for at least 5 years before applying for citizenship, and one of those years must have been the year before making the application. The other 4 years must have been within the 8 years before making the application. This 5 year period can be shortened to 2 years if the person is the wife or husband of a South African citizen. (See page .. Immigration permit)
- must be able to communicate in one of our official languages
- must be of good character
- must be knowledgeable of responsibilities of being a South African citizen AND
- if married to a South African spouse, must have two years of permanent residence and two years of marriage to the South African spouse before submitting the application
BUT this application for citizenship can be refused by the Minister even if the person seems to fulfil all the conditions. It is regarded as a privilege not a right.
How can a person lose South African citizenship?
South African citizenship cannot be taken away from anyone unless that person also has the citizenship of another country.
A person can lose South African citizenship by:
- getting the citizenship of another country unless the reason for that is a marriage to a citizen of the other country
- by renouncing the South African citizenship voluntarily
- by serving in the armed forces of another country while that country is at war with South Africa
- by using the passport of another country without the Minister's permission
- by voting in another country's elections
OR
- if the certificate of naturalisation was obtained by means of fraud or false representation
- if the certificate was issued in conflict with the provisions of the Act
- in the case of South African dual citizenship, the citizen has been sentenced to imprisonment for 12 months or more
- if the minister is satisfied that it is in the public’s interest that such a citizen shall cease to be as a South African citizen
Anyone who complains that their South African citizenship has been taken away MUST be referred to a lawyer.
Dual citizenship
A South African citizen cannot have dual citizenship, in other words, be a citizen of two countries at the same time. The original citizenship will automatically be cancelled if a person is granted citizenship of another country
According to the South African Citizenship Amendment Act (No 17 of 2004) a citizen is guilty of an offence and is liable to a fine or imprisonment IF he/she:
- Enters or departs from the Republic by making use of the passport of another country
- While in the Republic, makes use of his/her citizenship from another country to gain advantage or avoid duty
According to the Eighth Amendment Act of the Regulations in terms of the South African Citizenship Act, the following fees are applicable:
- Exemption from the loss of South African citizenship: R110-00
- Application for the resumption of South African citizenship: R115-00
- Application for the retention of South African citizenship: R110-00
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