With the number of South Africans emigrating reported to have soared, many are applying for foreign citizenship over permanent residence to cease tax residency in SA –and so avoid paying tax here while living and working in another country.

However, Stefanie de Saude Darbandi – an immigration & citizenship law specialist at De Saude Darbandi Attorneys – says many of these people are unaware that securing foreign citizenship could strip them of their right to SA citizenship – unless they have applied directly to the Home Affairs Minister for exemption.

In her opinion piece in Business Day, Darbandi notes Section 6(1) of the SA Citizenship Act states that South Africans who obtain citizenship of another country automatically cease to be SA citizens.

However, section 6(2) of the Act does allow South Africans to retain their citizenship provided they have applied directly to the Minister of Home Affairs for a certificate of exemption.

She notes in August 2021, in DA v Minister of Home Affairs and Others, the Gauteng High Court (Pretoria) held that when South Africans fail to obtain the necessary permission from the Minister, this amounts to a clear intention to reject one’s ties with the country.

The DA is now taking the case to the SCA, with 23 February the set-down date. Describing it as a violation of human rights, the DA argues that section 6(1)(a) of the SA Citizenship Act is unconstitutional.

The Constitution explicitly states in section 20 that ‘No citizen may be deprived of citizenship’.

Darbandi says automatic stripping of citizenship is not only distressing – it is also contributing to people circumventing legal processes.

‘Since losing one’s citizenship means you cannot renew your passport, many people are now opting not to disclose their dual citizenship to Home Affairs officials when they apply to renew their passports, since once they have disclosed this information and the system is updated, they will no longer be able to renew their passports even if they intend to continue living in SA.’

She notes those who have lost their citizenship can apply to have it reinstated – as long as they live in the country or have returned to SA permanently. 

However, many people who have lost their status have encountered ‘significant difficulties’ while applying to have their citizenship reinstated.

‘Some have been turned away because the specific Home Affairs office does not take such applications, while during the lockdown many were told that the department was not rendering that service. At offices where applications were accepted, the processing can take between two and 10 months on average.’

Full opinion piece in Business Day