The Miss SA saga - Everything you need to know about South African citizenship and the law

Chidimma Adetshina. (Photo: ScreenshotYouTube)

By Victoria O’Regan

13 Aug 2024

Debates about Sowetan-born, former Miss South Africa contestant Chidimma Adetshina’s nationality have prompted questions about South African citizenship. What does it mean to be South African in terms of the law?

Citizenship, in the legal sense, means being recognised by a country’s laws as a member of that country. But beyond the legalities, there is the subjective aspect of citizenship — the profound sense of belonging and identity.

“There’s a legal side of it, in terms of which you have certain benefits, rights, privileges and obligations. And then of course it becomes subjective, and that varies from person to person,” immigration lawyer Stefanie de Saude Darbandi told Daily Maverick.

Read more: Hypocrisy Galore — Miss SA is a playing field for cheap xenophobic exploits and ugly spectacles

citizenship south africa Chidimma Adetshina Chidimma Adetshina. (Photo: Screenshot / YouTube)

Debates about Sowetan-born, former Miss South Africa contestant Chidimma Adetshina’s nationality have prompted questions about South African citizenship; how one gains it and how one may lose it.

There are two fundamental pieces of legislation which define the criteria for citizenship in South Africa. The South African Citizenship Act 88 of 1995 outlines the general framework for citizenship in the country and the South African Citizenship Amendment Act 17 of 2010, which came into force on 1 January 2013, changed certain of the provisions.

The South African Citizenship Act provides for three main forms of citizenship: citizenship by birth, citizenship by descent and citizenship by naturalisation.

What is citizenship by birth?

The Citizenship Act of 1995, De Saude Darbandi said, “distinguished between people born in South Africa and people born outside of South Africa, and it provided that if you were born in South Africa and you were born to a South African citizen or a permanent resident at the time of your birth, then you are South African”.

However, following the implementation of the Citizenship Amendment Act in January 2013, De Saude Darbandi said, “local births and foreign births are on an equal footing”.

The Act now uniformly grants citizenship to people born to a South African citizen, irrespective of where they are born.

“If at the time of your birth, at least one of your parents was a South African citizen, you are a South African citizen by birth,” she explained.

Section 2(3) of the Citizenship Amendment Act also states that any person born in South Africa whose parents have been admitted for permanent residence qualifies to be a South African citizen by birth if that person has resided in South Africa from birth to the age of 18, and their birth is registered in accordance with the Births and Deaths Registration Act of 1992.

So if one is born in SA, does one automatically qualify for South African citizenship?

No. Speaking to Daily Maverick, immigration attorney Kristina Dolischka explained that if both parents are foreign nationals, the child holds the citizenship of the parents.

“Being born in South Africa does not automatically grant you the right to South African citizenship,” she said.

What is citizenship by naturalisation?

Citizenship by naturalisation is regulated by section 4 of the Citizenship Amendment Act.

An attorney at the Legal Resources Centre (LRC), Charlene Kreuser, explained that, according to section 4(3) of the Citizenship Amendment Act, “Children who are born in South Africa, of parents who are not citizens or permanent residents [qualify] to apply for citizenship once they have turned 18 if two conditions are met: they had to have been born in South Africa and lived [in the country] since birth, and their birth should have been registered in terms of the Births and Deaths Registration Act.

“These certificates are written and are not the same certificate South African citizens receive.”

Since coming into force on 1 January 2013, persons qualifying for citizenship by naturalisation under this section have faced numerous barriers as the Department of Home Affairs (DHA) has interpreted this section to only apply to children born after 1 January 2013, Daily Maverick reported.

Read more: Lurking xenophobia – Miss SA saga is a blot on our country’s constitutional DNA

This interpretation was legally challenged by six individuals represented by the LRC, who were born in South Africa before 2013. In September 2017, the Western Cape Division of the High Court found that the DHA’s refusal of citizenship to the six individuals was unconstitutional, ruling that the DHA’s failure to interpret the law to apply retrospectively would draw an artificial distinction between children born before and after 1 January 2023.

In 2018, the Supreme Court of Appeal (SCA), confirmed the high court judgment. The then minister of home affairs Aaron Motsoaledi sought leave to appeal to the Constitutional Court, but this was denied.

“Part of the [SCA] order against the minister was to adopt regulations that set out a process in terms of which applicants can apply for citizenship. But no regulations have been adopted. Pending this, the minister must allow applicants to apply on affidavit and process their citizenship applications,” said Kreuser.

What about citizenship by descent?

De Saude Darbandi explained that before the adoption of the Citizenship Amendment Act, under the provisions in the Citizenship Act of 1995, a child born outside of South Africa to a South African citizen had a right to citizenship by descent.

However, under the Citizenship Amendment Act, which uniformly grants citizenship to people born to a South African citizen at home or abroad, citizenship by descent is now restricted to a child who is adopted, in terms of the provisions of the Children’s Act, by a South African citizen.

“Any child adopted by a South African citizen in terms of the Children’s Act, whose birth is registered in terms of the Births and Deaths Registration Act, is a South African citizen by descent,” explained Dolischka.

Under what circumstances can South African citizenship be lost?

According to section 6(1) of the Citizenship Act, an adult South African citizen automatically loses their citizenship if they voluntarily or formally acquire the citizenship or nationality of another country (except through marriage) without first applying for and obtaining permission from the minister of home affairs to retain their citizenship.

However, this is the very issue that the DA took to court and won. In the matter of the Democratic Alliance v The Minister of Home Affairs and Another, the SCA in June 2023, ruled that the state has no right to strip South Africans of their birthright — even if they acquire citizenship of another country.

Read more: Home Affairs minister has no right to strip South Africans of their citizenship, rules SCA

The SCA ruled that section 6(1)(a) of the Citizenship Act was unconstitutional and therefore invalid, and that those who had lost their citizenship through that section of the Act “are deemed not to have lost their citizenship”.

In other words, the SCA ordered the retrospective reinstatement of citizenship to any person who had lost their citizenship through section 6(1)(a). However, according to the Constitution, the Constitutional Court must confirm any order of invalidity made by the SCA before that order has any force. The Constitutional Court has yet to do this.

“The judgment as handed down in the Supreme Court of Appeal only applies to those impacted by the loss provision from 1995 onwards. Even those who will benefit from the judgment will have to wait for the judgment to be confirmed in due course by the Constitutional Court,” said Dolischka.

Section 6(1)(b) of the Citizenship Act also stipulates that a citizen will cease to be a South African citizen if he or she is a citizen of another country and serves in the armed forces of that country, while that country is at war with South Africa.

Read more: US legislators threaten ‘consequences’ if SA arrests citizens for serving in Israeli army

The Citizenship Amendment Act of 2010 added a provision to that section of the Act, which says, “Any person who obtained South African citizenship by naturalisation … shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic does not support.”

Under what circumstances can South African citizenship be revoked or deprived?

According to section 8(1) of the Citizenship Act, the Minister of Home Affairs is empowered to deprive any South African citizen by naturalisation of his or her citizenship if the minister “is satisfied that the certificate of naturalisation was obtained by means of fraud, false representation or the concealment of a material fact; or such certificate was granted in conflict with the provisions of this Act of any prior law”.

“[South African citizenship] can be withdrawn only if it is given by mistake, so you cannot be deprived of your citizenship status — it’s a constitutional right,” said De Saude Darbandi.

“Home Affairs can only cancel or withdraw if they can prove that you weren’t actually entitled to it or it was granted by mistake or some fraudulent activity,” she added. DM

Categories:

South Africa

Tags:

DM is much better if you are signed in...

South Africa