The recent judgment by Gauteng High Court (Pretoria) Judge Jody Kollapen that the SA Citizenship Act 88 of 1995 does not deprive South Africans of their citizenship has ‘dealt a blow to potentially tens of thousands of South Africans living abroad, who were stripped of their SA citizenship on becoming citizens of foreign countries’.

So says Stefanie de Saude-Darbandi, an immigration and citizenship law specialist at De Saude Attorneys, noting Kollapen found that the Constitution differentiated between ‘loss’ and ‘deprivation’ of citizenship and that the Act made provision for citizens to apply to the Department of Home Affairs to retain their citizenship before they applied for foreign citizenship.

Writing in Business Day, De Saude-Darbandi says the processes for applying for retention of citizenship are deeply flawed.

While Home Affairs has said the application process takes four weeks, since the onset of the pandemic the department has not processed any of these applications.

‘While the Act provides for people to apply for retention of their citizenship, they cannot do so now,’ she says, arguing that the judgment is written from a narrow, academic and conservative viewpoint:

‘It looks at this matter purely on paper and makes little effort to consider how it affects real people in the real world’.

She adds: ‘Kollapen appears inclined to protect constitutional rights in principle, but it seems not in practice. We understand that he is aspiring to a seat on the Constitutional Court and we hope that he – with all other judges – will strive to be more pragmatic in their commitment to upholding constitutional principles for the good of South Africans (and foreigners in SA).’

De Saude-Darbandi says the DA intends to apply for leave to appeal to the SCA against the whole of the judgment and order, arguing that the High Court assumed erroneously that those who lost their citizenship intended to do so.

‘Our legal practice knows these arguments to be true: the lack of accurate, readily available information for South Africans taking up residence elsewhere and the narrow and conservative application of the provisions of the Act deprive South Africans of their right to citizenship.’

Full Business Day report