What to expect as an Expat: Apartheid Era Legislation now facing Constitutional Scrutiny

In the past, many South African expatriates have been faced with the shocking discovery that they have lost their citizenship whilst living abroad. This issue has arisen due to Section 6(1)(a) of the South African Citizenship Act 88 of 1995 (hereinafter referred to as “the Act”), a piece of legislation dating back to the apartheid era, which has recently been under fire in the Supreme Court of Appeal (hereinafter referred to as “the SCA”). During 2023, the SCA, in the case of Democratic Alliance v The Minister of Home Affairs and Another [2023] ZASCA 97, declared that Section 6(1)(a) of the Act was in fact unconstitutional from its date of inception (6 October 1995), and so currently, South African expatriates should not face the risk of losing their South African citizenship. This has however become complicated by the fact that the matter has now been referred to the Constitutional Court to be “relooked at” and this could ultimately mean a revival of the pre-1995 position.

In the case in question, the plight of citizens like Mr. Phillip James Plaatjes was highlighted. While residing in the UK, Plaatjes was informed that by acquiring British citizenship, he had lost his South African citizenship - a consequence he was unaware of until he tried to renew his South African passport. As already mentioned, the law in question, which mandates that South African citizens automatically lose their citizenship upon acquiring another nationality without prior ministerial approval, has been labelled as unconstitutional and irrational by the SCA.

To this end, the SCA found that Section 6(1)(a) is inconsistent with the Constitution, in that it specifically violated Section 20, which expressly states that “no citizen may be deprived of citizenship.” It was noted that the law fails to serve a legitimate government purpose, arbitrarily depriving citizens of their rights without notice or justification. This loss of citizenship not only affects one’s national identity but also curtails fundamental rights, such as the right to vote and freedom of movement.

In an interview that premiered on Carte Blache this Sunday, Dr. Leon Amos Schreiber, the current Minister of Home Affairs, provided reassurance that the Government of National Unity is working towards fixing fundamental issues that have plagued the Republic for years. He advised expatriates to contact the Department of Home Affairs, should they be required to renew their South African passports prior to the final ruling of the CC– a decision which he vows will be respected by the Department.  

With the CC, the apex court of the Republic, now considering the case, the question remains: Will this outdated Legislation be relegated to history, returning citizenship to all those who have been adversely affected? South African expats, and indeed all citizens, are eagerly awaiting the decision, hoping for a ruling that affirms their intrinsic rights and national identity.

Written by Alexis van Eeghem.

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