Expats welcome getting South African citizenship back

The South African Supreme Court of Appeal (SCA) has finally struck down a draconian piece of apartheid-era legislation that resulted in thousands of South Africans – including Jews – abroad unknowingly losing their South African citizenship.

“This loss of citizenship was breaking up families and locking South Africans out of the land of their birth,” says Member of Parliament Adrian Roos, shadow deputy minister of home affairs, who led this fight.

“The response from affected parties was simply overwhelming and the need for this litigation was clear,” he says. “This restoration of South African citizenship will result in countless South Africans returning over time and bringing skills and capital into South Africa to help us rebuild after the 2024 elections. It will also bring hope that South Africans abroad can make a difference, and encourage them to participate in campaigns affecting their rights as South Africans abroad.”

The judgement, made on 13 June, comes after a nine-year campaign by the DA Abroad and a five-year court battle by the Democratic Alliance (DA). “The judgement is a victory for the constitutional right to citizenship,” says Roos. “Interacting with South Africans abroad who had lost their citizenship and knowing the devastating impact, it was an emotional moment thinking of how their lives have now changed.”

Kim Kur, who supports expats daily through her Facebook page Community Circle SA, notes that there are vital reasons to retain South African citizenship which became especially clear during the COVID-19 pandemic, when all other than South African citizens were restricted in accessing the country. “We never know what will happen in the future.”

Previously, Section 6(1) of the Citizenship Act provided that an adult citizen loses their South African citizenship if they take on the citizenship of another country by a voluntary and formal act other than marriage without first receiving permission from the minister of home affairs to retain their South African citizenship.

“The SCA found that this vests in the minister a vague discretionary power in relation to the retention of the right to citizenship,” says Roos. “This provision is in fact carried over from an apartheid-era Citizenship Act, which was used by the apartheid government to strip exiled freedom fighters and those taking citizenship of bantustans of their South African citizenship without their knowledge. It doesn’t belong in our constitutional democracy.”

In 2021, the Gauteng High Court Pretoria ruled against the DA on the matter, but it took its fight to the SCA. “The journey started nine years ago in the run-up to the 2014 elections, when South Africans abroad who had taken on a second citizenship were finding they couldn’t register to vote as they had apparently lost their South African citizenship,” says Roos.

The home affairs department’s (DHA’s) position was that South African citizens who gave up their citizenship in terms of the section in question did so knowingly and intentionally. But the DA said that this wasn’t always the case, and that many who weren’t aware of the law or, for example, received bad legal advice, didn’t realise they were forfeiting their South African citizenship when they took up a second country’s citizenship. It also said that the current system left the department itself unaware of when a citizen gave up their citizenship.

The DA argued that the department itself accepted that dual citizenship wasn’t problematic, and that the legislation provided for it. It said the default position should reflect this.

Now, the SCA has declared that citizens who lost their citizenship by operation of section 6(1)(a) of the South African Citizenship Act 88 of 1995, “are deemed not to have lost their citizenship”.

Many South Africans abroad expressed joy at the news. One Jewish expat living in the United Kingdom said he never wanted to lose his South African citizenship. However, the British postal system was so efficient, he received his British passport before the retention of his South African citizenship came through, and by law, it had to be the other way around. “I essentially missed it by about 24 to 48 hours,” he says.

This later had an impact on his son, who wanted to travel through southern Africa to do game ranging and get experience working with animals before studying veterinary medicine. “It would have been a lot easier for him to travel on a South African passport,” the expat says. His son had to leap through so many bureaucratic hoops that the process is yet to be resolved. That’s why this expat prefers not to be named.

Kur says this is another crucial reason to retain South African citizenship. “It’s your rightful heritage, and it’s your children’s right to have it passed down to them. We don’t know what our children will want in the future.” In addition, “Using your right to vote from abroad can make a massive difference.

“The South African passport, while not as internationally powerful as others, is useful for access to certain countries,” she says. Finally, “you’re able to travel to South Africa through quicker queues, stay as long as you need to, and easily retire in South Africa. Plus, many tourist destinations discount their prices to citizens. The savings at Kruger [Park] alone make it worth it!”

Immigration lawyer Gary Eisenberg says the judgement still needs to be confirmed by the Constitutional Court, and there’s a possibility that it could be amended or overturned, especially if the DHA appeals it. However, he has faith that it will be confirmed.

One South African oleh told the SA Jewish Report that “when making aliya under the Law of Return, one doesn’t lose South African citizenship and one doesn’t need to request to retain it. This was confirmed to me in writing by the South African embassy in Israel about a year ago.”

Kur says “obtaining Israeli citizenship by the Law of Return seems to fall into the same loophole as those who apply for citizenship by descent. They never had to apply for retention. The same is true for those applying for Lithuanian citizenship.”

However, one expert speaking on condition of anonymity says that making aliya under the Law of Return and maintaining South African citizenship assumes that the South African government accepts the Law of Return and Israel as the Jewish homeland. That’s why he suggests still applying for retention when making aliya, given that it’s “risky” to rely on South Africa’s perceptions of Israel.

“The DA has been pressurising home affairs to improve its services at South African missions abroad, and this is bearing fruit,” says Roos. “Many South Africans abroad were beginning to abandon their citizenship because of difficulty in renewing their passports. This petition on home affairs services in missions abroad was served in parliament yesterday [13 June], and has already resulted in improvements.

“I would encourage the Jewish community to encourage their South African friends and family abroad to hold on to their South African citizenship with everything they have, participate in the upcoming 2024 elections, and be in a position to return to South Africa after the 2024 elections to help us rebuild our beautiful land,” he says.

“People need to hold their citizenship with pride, vote for change at their embassies abroad, and not let what’s being done to our country define our heritage,” Kur says. “As Jews, our ancestors had everything taken from them against their will. We even have to fight to claim Israel as ours. So, to have our birthright removed unconstitutionally is another blow. Our Jewish community is so dispersed, and our South African citizenship is our bond.”