Immigration lawyer Chris Watters considers proposals for amendments to South African Citizenship Act.
The 2010 South African Citizenship Amendment Bill has been tabled in Parliament and members of the public have been invited to comment on the proposals put forward by the Department of Home Affairs. Several aspects of both this Bill and the current Citizenship Act warrant comment and closer examination.
A significant misnomer in the current Citizenship Act is the concept of ‘citizenship by birth’. The current Act does provide for persons to obtain South African citizenship by virtue of their birth in this country. However, as many people have found over the years, being born in South Africa of itself does not confer any citizenship rights or expectations for the person concerned.
This is to be contrasted with the law in many other countries, where citizenship is acquired just because one is born in that country, no matter what the residence status of your parents may be. In South Africa, the current Act provides that you become a citizen by birth if one of your parents is a South African citizen and the other is a permanent resident as at the date of your birth. So, in fact, what matters is not whether you were born in South Africa, but the residence status your parents had. But this may be about to change, although grudgingly, it would appear.
The new Bill proposes that any person born in South Africa to parents who have been admitted into the country qualifies to be a South African citizen by birth if he or she has lived in the country from birth until becoming a major – which is defined to be age 18. The Department of Home Affairs must, nevertheless, be applauded for this brave gesture amidst the angst of xenophobia that stalks the land.
However, in what might be a sop to the xenophobes, the term ‘admitted’ suggests that this measure is intended to benefit only those persons whose parents entered South Africa lawfully or who have had their residence duly regularised. Talk about ‘the sins of the father’ being visited upon the next generation, especially if that unlawful status only comes to light after an 18-year wait!
Unfortunately, the department has declined to deal with or clarify the issue of dual nationality and the arbitrary deprivation of South Africans of their citizenship, which continues to happen. Section 20 of the Bill of Rights provides, somewhat tersely, that “no-one may be deprived of their citizenship”.
Of course, as many South Africans have found out, were one to acquire dual nationality, the chances would be high that, in doing so, you would simultaneously lose your South African citizenship. And, tragically, as still happens regu- larly, the first you know about this is when you apply for a new South African passport and Home Affairs or Embassy staff – sometimes with less-than-ill-disguised glee – seize your passport and/or ID document and cancel them. This can be immensely stressful if you are in a foreign country and are trying to travel back home.
This apparent arbitrary deprivation of your citizenship is justified on the basis that you, and not the Department of Home Affairs or the Minister of Home Affairs, have been the author of your own misfortune. You have deprived yourself of your citizenship by acquiring the citizenship of another country by some ‘formal and voluntary act’ without first getting Ministerial approval to retain your South African citizenship, as required by section 6 of the Citizenship Act.
The problem with this interpretation is that Parliament also has to make laws that are consistent with the Constitution. The legislation cannot set the trap, as it were, and then have everyone sit back with folded arms and blame the unwitting and soon-to-be-ex-citizen. In what must be a considerable irony, the 2005 Amendment to the Citizenship Act removed the Minister’s power to terminate citizenship – which, under the Promotion of Administrative Justice Act, would have required a prior hearing.