Hotel Palacio St. Louis in Portugal. Photo Supplied
The Supreme Court of Appeal recently ruled that the automatic loss of South African citizenship after gaining citizenship in another country is unconstitutional. In a unanimous ruling, it further ordered that those South Africans who lost their citizenship through the application of the specific section in the Citizen Act, since its operation from 1995, “are deemed not have not to have lost their citizenship”, according to a GroundUp report.
The challenge to the legislation was brought by the Democratic Alliance, whose arguments were initially dismissed by the Pretoria High Court before being granted leave to appeal. The ruling was handed down in mid-June by Judge Dumisani Zondi.
“The DA brought the application on behalf of South African citizens who, to their surprise, discovered they had lost their citizenship,” Zondi noted.
The DA relied on the evidence of Phillip Plaatjes, a South African living in the United Kingdom, who married a British citizen. Plaatjes eventually became a naturalised citizen of the UK in 2007 and travelled regularly on his South African passport.
But in 2015, when he went to the embassy in London to renew his passport, he was told he had “automatically” lost his citizenship after he acquired British citizenship, and embassy officials cancelled his passport. Plaatjes said he never wanted to leave South Africa permanently nor relinquish his South African citizenship.
Judge Zondi said the DA contended there were many South Africans living abroad who had been similarly affected, and the Act had taken away their right to citizenship without any notice.
There is no doubt that a piece of legislation, which is causing this predicament of people unintentionally losing their South African citizenship, is problematic. One day, you work on a contract in the British Isles and marry a Pommie Playmate, and the next thing you know (or in this case, you don’t know), you are a naturalised UK resident by marriage, and you can no longer call South Africa home. That means that you can’t vote in the national elections or stand in the short queue at OR Tambo.
Stephanie De Saude-Darbandi, a Cape Town-based legal specialist in citizenship and immigration law, recently told Pippa Hudson on CapeTalk that it all starts with the specific provision that was challenged, where a South African acquired a foreign nationality by some formal and voluntary process, with some exceptions, that person would cease to be a South African unless the person required or acquired the prior written consent of the Minister of Home Affairs.
This created a number of problems, she said. Firstly, knowing what constitutes formal and voluntary process. A lot of people are under the impression that simply applying for residency status or foreign citizenship is deemed to be a formality when, in fact, that's not the case. It's usually in cases where one is living abroad for five years and applying for citizenship by naturalisation, for example, a basis to which you are not otherwise entitled to, like by descent, which is excluded. But it has been found that many South Africans have even been stripped of their identity in these circumstances.
Another problem is that it's an automatic loss. So you're unaware of the fact that you've actually lost your South African status, which occurs as soon as you receive the foreign status. And you usually only become aware of it when you come home to visit or apply for a new passport.
Certainly, it seems bizarre because there are many countries in the world that allow dual citizenship that I know of, and many people I know who have dual citizenship in South Africa and in another country. But my understanding is that this provision actually dates back to the apartheid government, which were trying to deal with the political connected exiles. Also, the DA held itself to suggest any purpose behind this provision and why it still exists.
But the State’s entire argument rested basically on the fact that people should be assumed to know the law, and that is why De Saude-Darbandi said the DA has a strong case.
But the recent judgment is not set in stone, and it will only be final until the Constitutional Court sings. In the meantime, Golden Visa programmes for local investors remain popular with potentially unknown consequence.
Chris Immelman, who heads up Pam Golding International, told Personal Finance that the Portugal programme had been the most popular by far. “We have assisted over 500 South African families with the programme, with the first applicants already receiving Portuguese Citizenship - and the resultant EU Passport, allowing then to work, live and travel in any EU Country.”
“Whilst this is not an emigration programme, it does offer applicants the opportunity to do just that - although most are doing it as a hedge against political and economic uncertainty in South Africa. We have also noted that most applicants would prefer to stay in SA - but create opportunities for their children to work and study in the EU,” he said.
Initially, the programme required an investment of €500k in property - i.e. purchasing a property in Lisbon and then benefiting from being able to lease it to a local Portuguese Family. Nowadays, you can invest in hospitality products from as little as €280k in the tourist areas and €350k in the cities - the latest is a development called Hotel Palacio, St Louis. This is being developed by the Mercan Group from Canada, with whom we have already “placed” over 90 South African families.
Despite De Saude-Darbandi seeming fairly confident that the Constitutional Court will validate the finding, we don’t know when that will be.
In the interim, if you were in this position of wanting to hold on to your citizenship while applying for or acquiring a second one, as in the case of a golden visa programme, you probably want to do the right thing and make an application to the Minister to ask for permission to hold both, but it will take some time, Between 18-24 months, on average, as a matter of fact. And bearing in mind that the the foreign country will probably process the application in about six months, your South African identity might fall through the cracks. So best you one speaks to a professionals, like De Saude-Darbandi or Immelman, before making any sudden moves.
But it is also important to know that not all countries allow for dual-citizenship. So you need to check that you're not falling foul of the law on that side of the equation as well.
PERSONAL FINANCE