FAQ: Citizenship

The DA’s Case:

The DA took the Department of Home Affairs to court to challenge Section 6(1)(a) of the South African Citizenship Act 88 of 1995 (the Act) which the party deemed to be unconstitutional. The application of this section sees South Africans who apply for a second nationality automatically lose their South African citizenship unless they actively retain their citizenship through successfully applying to the Minister of Home Affairs for a ‘retention of citizenship’.

Home Affairs claims this loss of citizenship is being done by personal choice whereas, in reality, many South Africans lose their citizenship without even knowing it

The Court Outcome:

On 13 June 2023, after an almost 9-year campaign from the DA Abroad and an extended court battle, the Supreme Court of Appeal ordered that any South African whose citizenship was lost after obtaining new citizenship in a foreign country is in fact still a South African citizen.

For the almost 2 million South Africans which currently live aboard this is an enormous victory.  

What does this mean for you?

Following the Supreme Court of Appeal’s judgment, the national government may choose to appeal to the Constitutional Court. In light of this, we know that many of you have questions about the time frames involved and what this practically means for you. Please find the answers to your most frequently asked questions below:

 1.  Is it true that the Supreme Court ruling on constitutionality would need to be ratified by the Constitutional Court and that the judgment will only take effect after that ratification?

Yes, per section 167(5) of the Constitution, orders of constitutional invalidity (like that granted in this matter) only have effect after they are confirmed by the Constitutional Court.

2. Can Home Affairs appeal and what are the timeframes for this?

Yes they may. Their notice of appeal should be filed within 15 working days of the date of judgment (though late appeals are permissible if condonation is granted by the Court).

3. If they did appeal would the judgment be suspended?

Because the order will only take effect when confirmed by the Constitutional Court, there is no need for “suspension”.  But yes, in principle, final orders against which an appeal is filed are suspended.

4. Is s6(1)(a) of the South African Citizenship Act 88 of 1995 automatically struck down or is some amendment needed by parliament?

No amendment by Parliament is needed.  If confirmed by the Constitutional Court, the provision will be struck down by virtue of the Court’s order.

5. Must people still continue to apply for a retention of citizenship just in case? If so until what point?

The safe approach would still be to apply for a retention of citizenship. This will be the safe approach up until the Constitutional Court makes its order.  If the Constitutional Court upholds the SCA’s order (i.e. finds in favour of the DA), then even people who did not apply for retention will be deemed not to have lost their citizenship.  But there is a possibility that the Constitutional Court will dismiss the DA’s application and not confirm the SCA’s judgment.  In that case, s6(1)(a) will remain in force and persons who did not obtain permission to retain their South African citizenship will lose their citizenship.

6. Then there are people who deliberately did not retain their SA citizenship who are in countries that don’t allow dual citizenship. Must they now officially renounce their SA citizenship and when?

Such persons will now be deemed to be South African citizens again.  They may indeed be required to renounce their South African citizenship (which can be done in terms of section 7 of the South African Citizenship Act), but that will be regulated by the law of the foreign country in question.

Please continue to follow the DA Abroad’s campaign for all the latest updates as and when they happen.