Change to dual nationality law for South Africans

On 13 June 2023, the Supreme Court of Appeal of South Africa handed down its judgement in a case determining the future position for dual nationality in South Africa (Democratic Alliance v The Minister of Home Affairs and another (67/2022 [2023] ZASCA 97). The judgement benefits South Africans who have acquired citizenship or nationality of another country in recent years.

South African citizenship law commenced in 1949. Prior to this point, all those born in most parts of the British Empire were simply British Subjects (including those born in South Africa). From 1949, when South African citizenship was established, there have been limitations on dual nationality. Between 6 October 1995 and 13 June 2023, adult South Africans who voluntarily acquired citizenship of another country had to seek permission from the government to retain their South African citizenship. Those born with a second nationality by descent (perhaps because their father was born in another country) did not have to take any steps to keep South African citizenship.

Many South Africans, both in the Republic and overseas, fell foul of the rules and lost their South African citizenship, not realising that the necessary permission needed to be sought before acquiring the second nationality.

The Supreme Court of Appeal has now declared that:

• Section 6(1)a of the South African Citizenship Act 1995 is inconsistent with the Constitution and is invalid from its promulgation on 6 Oct 1995 and,
• South African citizens who lost citizenship by operation of section 6(1)a of the 1995 Act are deemed not to have lost citizenship.

This means that any South African citizen who, between 6 October 1995 and 13 June 2023, lost their South African citizenship as a result of acquiring citizenship of another country, without first obtaining the necessary permission from the Department of Home Affairs, is now a South African citizen once more.

In making the declarations above, the Supreme Court noted that no secondary legislation would be required for the Court’s intentions to take effect and that no grace period was required before the changes would commence. Presumably and assuming the judgement is approved by the Constitutional Court, it will soon be open for those affected to simply re-apply for South African passports.

Of course, constitutional duties exist for citizens of any country which can include the ability/duty to vote or, on the other end of the scale, compulsory military service. Holding citizenship of your country of birth may also affect consideration of domicile for tax matters or cause issues with dual nationality rules of other countries. Some professional advice may therefore be required for affected parties.

• If an adult South African citizen voluntarily obtained a second nationality before 6 October 1995, then Home Affairs may still require you to have obtained permission to hold a second nationality. If you are seeking to renew your South African passport because it has expired (or is about to expire), they may ask if you have voluntarily obtained a second nationality and, if so, provide the permission letter.
• If an adult South African citizen voluntarily obtained a second nationality after 5 October 1995, then Home Affairs should now not normally require you to hold the permission letter (as per this new ruling). If you are seeking to renew your South African passport because it has expired (or is about to expire), then Home Affairs should not require you to produce this permission letter in such circumstances.

This article is not intended to be a definitive and comprehensive interpretation of the law and should be used as a guide only. We always advise clients to obtain professional advice on such matters.