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.
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 or school reports
- 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 property 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. However the Department of 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.
One parent is a South African and the other parent is a foreign national
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, and the other parent is a foreign national, 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).
Both parents are foreign nationals
A child who is born in South Africa, from parents who are foreign nationals, will get the citizenship of their parents. However, at the age of 18 a child who is born in South Africa, where both parents are foreign nationals, can apply for citizenship by birth.
Adopted Child
Foreign children who are born in South Africa and legally adopted by a South African citizen are governed in terms of the Children's Act of 38 of 2005 and their birth is registered in South Africa. This means they will have citizenship of South Africa by birth.
CITIZENSHIP, Checklists, citizenship by birth
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.
Adoption of child born outside of South Africa
The Children's Act makes provision for people to adopt, and children who are legally adopted by a South African citizen, will qualify for citizenship through descent.
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. If children are born to foreign nationals and are legally adopted by a South African citizen the child would be granted citizenship.
See CITIZENSHIP, Checklists, Not born in South Africa
Citizenship by naturalisation
Naturalisation is the granting of citizenship to someone who has come to South Africa from abroad and stayed in this county for some time.
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 as a permanent resident for at least one year's ordinary residence immediately prior to the application for naturalisation
- After acquiring permanent residency have an additional 4 years of physical residence in the country during the 8 years prior to the naturalisation. This does not include the one year mentioned above
- 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
- 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
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. If that person acquires citizenship of another country, he or she will lose their South African citizenship unless they apply to retain it before acquiring foreign citizenship and paying the required fee.
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. However, a South African citizen can apply for the retention of South African citizenship BEFORE acquiring a foreign citizenship, against payment of a prescribed fee.
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:
- Application for the resumption of South African citizenship: R300-00
- Application for the retention of South African citizenship: R300-00
Relative's Permit
In terms of Regulation 23 of the Immigration Act a relative means "biological or judicially adopted children or adoptive parents and step parents". A relative's permit is a temporary residence permit which may be issued to a foreigner who is a member of the immediate family of a citizen or a permanent resident. The following proof is required:
- Proof that the applicant is a member of the immediate family of the resident
- The resident would need to provide proof that they are able to financially support the applicant
- The applicant my not work in this country
- The permit is issued for a period not longer than 2 years.
Permanent residence through first step of kinship:
A person can apply for permanent residence through a first step of kinship, for instance where the applicant is the father of a child born in South Africa and whose mother is a South African citizen. This application for permanent residence can also be made through the holder of a permanent resident's permit who is in the first step of kinship. BUT a foreigner cannot apply for permanent residence through a holder who obtained his or her permanent residence status through a first step of kinship.
See Checklist: Requirements: Application for permanent residency based on the first step of kinship.
Examples
1. Applying for citizenship from a permanent residence permit
A foreign national came into the Republic with an asylum seeking permit, and applied for status as a refugee which was granted for two years. After two years she applied for a permanent residence permit. If she stays for at least five years further, she can then apply for naturalisation.
2. Applying for permanent residence through a Relative's Permit
If a foreigner has married a South African citizen or permanent resident they can apply for a Relative's Permit from their country of origin. Once in South Africa, they can apply to become a permanent resident. If the person is indeed a member of the immediate family, and can satisfy the prescribed conditions, then the person can apply for permanent residency on the basis of first step of kinship.
3. Applying for permanent residence status through a child born in South Africa (first step of kinship).
A person who had applied for an Asylum Seeker's Permit, and whose permit is going to expire, wants to extend the permit. He has a relationship with a South African woman, and is the father of two children with her. The two children will be South African birth due to their mother's citizenship. He wants to apply for his Asylum Seeker's Permit to be renewed. The person is advised to apply directly for permanent residence status based on the first step of kinship through his two children. If his name is on the birth certificate then he could present the birth certificate as proof of kinship. However if the biological father's name is not disclosed, then he would need to make a late application for an unabridged certificate.
Note: In the case of a couple who are not married, the particulars of the father will only be evident on the unabridged birth certificate if the father's name was put down at the time of registration of the birth. If it is not recorded then a new application would need to be made to amend the birth certificate.
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