Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic (see section 21(3) of the Constitution Act 108 of 1996).
The South African Citizenship Act, Act 88 of 1995 (hereinafter referred to as “the Act”) regulates the acquisition and loss of South African citizenship and the consequences of loss of citizenship (see sections 2 to 4 and 6 to 11 of the Act).
Citizenship may be acquired either by birth, by descent or by naturalization.
Sections 2 to 5 of the Act regulates the acquisition of South African citizenship and reads as follows:
“2 Citizenship by birth
(1) Any person –
(a) who immediately prior to the date of commencement of this Act, was a South African citizen by birth;
or
(b) who is born in the Republic on or after the date of commencement of this Act; or
(c) who is by virtue of section 3 (1) (b) a South African citizen, and one of his or her parents or his or her mother if he or she was born out of wedlock, was at the time of such person’s birth-
(i) in the service of the Government of the Republic; or
(ii) the representative or the employee of a person or an association of persons resident or established in the Republic; or
(iii) in the service of an international organization of which the Government of the Republic was then a member, shall, subject to the provisions of subsections (2) and (3), be a South African citizen by birth.
(2) No person shall be a South African citizen by virtue of subsection (1) (b) if, at the time of his or her birth, one of his or her parents-
(a) was a person enjoying diplomatic immunity in the Republic in terms of any law relating to diplomatic privileges, or was a career representative of the government of another country, or was a person employed in the embassy or legation of such a government or in the office of such a career representative, or was a member of the household or an employee of any such person; or (b) had not been lawfully admitted to the Republic for permanent residence therein, and his or her other parent was not a South African citizen.
(3) No person who, after having ceased to be a South African citizen, at any time thereafter acquires South African citizenship by naturalization in the Republic, shall be a South African citizen by birth.
(4) Any person born in the Republic and who is not a South African citizen by virtue of the provisions of subsection (2), shall be a South African citizen by birth, if-
(a) he or she is adopted by a South African citizen in accordance with the Child Care Act, 1983, (Act 47 of 1983); or
(b) (i) he or she does not have the citizenship or nationality of any other country, or has no right to such citizenship or nationality; and
(ii) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act 51 of 1992).
3 Citizenship by descent
(1) Any person-
(a) who, immediately prior to the date of commencement of this Act, was a South African citizen by descent; or
(b) born outside the Republic, and-
(i) one of whose parents was or is, at the time of this or her birth a South African citizen and whose birth is registered in terms of the provisions of section 13 of the Births and Deaths Registration Act, 1992 (Act 51 of 1992); or
(ii) to whose responsible parent a certificate of resumption of previous South African citizenship has, in terms of section 13 (3), been issued, and who has entered the Republic for permanent residence therein before becoming a major, and whose birth is within one year after the date of issue of such certificate, or such longer period as the Minister in the special circumstances of the case may approve, registered in the Republic in the prescribed manner; or
(iii) who is adopted in terms of the provisions of the Child Care Act, 1983 (Act 47 of 1983), by a South African citizen and whose birth is registered in accordance with the provisions of subparagraph (i).
[Para. (b) substituted by s. 2 of Act 69 of 1997.]
shall, subject to the provisions of subsection (2), be a South African citizen by descent.
(2) No person who, after having ceased to be South African citizen, at any time thereafter acquires South African citizenship by naturalization in the Republic, shall be a south African citizen by descent.
4 Citizenship by naturalization
(1) Any person-
(a) who, immediately prior to the date of commencement of this Act-
(i) was a South African citizen by naturalization; or
(ii) was or was deemed to be a South African citizen by registration or
[Sub-para. (iii) deleted by section 3 of Act 69 of 1997].
(b) who, on or after the date of commencement off this Act, is granted a certificate of naturalization as a South African citizen in terms of section 5.
shall be a South African citizen by naturalization.
(2) Any person referred to in subsection (1) (b) shall, with effect from the date of the issue of the certificate, be a South African citizen by naturalization.
5 Certificate of naturalization
(1) The Minister may, upon application in the prescribed form, grant a certificate of naturalization as a South African citizen to any alien who satisfies the Minister that-
(1) The Minister may, upon application in the prescribed form, grant a certificate of naturalization as a South African citizen to any alien who satisfies the Minister that-
| (a) | he or she is not a minor; and |
| (b) | he or she has been lawfully admitted to the republic for permanent residence therein; and |
| (c) | he or she is ordinarily resident in the Republic and that he or she has been so resident for a continuous period of not less than one year immediately preceding the date of his or her application, and that he or she has, in addition, been resident in the Republic for a further period of not less than four years during the eight years immediately preceding the date of his or her application; and |
| (d) | he or she is of good character; and |
| (e) | he or she intends to continue to reside in the Republic or to enter or continue in the service of the Government of the Republic or of an international organization of which the Government of the Republic is a member or of a person or association of persons resident or established in the Republic; and |
| (f) | he or she is able to communicate in any one of the official languages of the Republic to the satisfaction of the Minister; and |
| (g) | he or she has an adequate knowledge of the responsibilities and privileges of South African citizenship. |
| (2)(a) | Any period during which an applicant for naturalization has been employed outside the Republic in the service of the Government of the Republic (otherwise than as a person engaged locally) or on a ship or aircraft or a public means of transport registered or licensed in and operating from the Republic, and any period during which an applicant for naturalization has been resident outside the Republic with his or her spouse while the latter was so employed, shall, for the purposes of subsection (1), be regarded as a period of residence or ordinary residence in the Republic. |
| (b) | For the purposes of subsection (1) the Minister may, in his or her discretion, regard as a period of residence or ordinary residence in the Republic any period during which an applicant for naturalization has been employed outside the Republic on a ship, aircraft or public means of transport operating from the Republic, and any period during which an applicant for naturalization has been resident outside the Republic with his or her spouse while the latter was so employed, notwithstanding the fact that such ship, aircraft or public means of transport was not registered or licensed in the Republic. |
(3) Any period during which an applicant for naturalization-
(a) is or was confined in a prison or other place of detention in the Republic after being convicted; or
(b) has sojourned in the Republic, either conditionally, temporarily or in contravention of any law in force in the Republic, shall for the purposes of subsection (1), not be regarded as a period of residence or ordinary residence in the Republic.
(4) The Minister may, notwithstanding the provisions of subsection (1), upon application in the prescribed form by the responsible parent or the guardian of a minor who is permanently and lawfully resident in the Republic, grant to that minor a certificate of naturalization as a South African citizen.
(5) The Minister may, notwithstanding the provisions of subsection (1), upon application in the prescribed form, grant a certificate of naturalization as a South African citizen to a person who is an alien and who satisfies the Minister that-
(a) in the case of a man, he is the husband or widower, or in the case of a women, she is the wife or widow, of a South African citizen and he or she has been lawfully admitted to the Republic for permanent residence therein and has resided in the Republic for a period of not less than two years immediately preceding the date of his or her application and after the date of his or her marriage to such citizen; or
(b) he or she is the spouse of a south African citizen, and he or she has in terms of any law relating to the control of the admission of aliens obtained permission to enter the Republic for permanent residence therein and he or she has resided with his or her spouse in the Republic or, while he or she was employed in the service of the Government of the Republic, outside the Republic for a period of not less than two years.
(6) A certificate of naturalization shall not be issued to any person over the age of 18 years before that person has made the declaration of allegiance set forth in Schedule 1.
(7) The Minister may in respect of any person who has applied for a certificate of naturalization make such enquiries as the Minister may deem fit, and require such person to appear personally before him or her or a person designated by him or her.
(8) If the Minister has refused an application for a certificate of naturalization by or on behalf of any person, the Minister shall not be obliged to reconsider such application at any time, but shall not consider another application for a certificate of naturalization by or on behalf of such person until the expiration of a period of at least one year from the date upon which the person in question was advised of the Minister’s decision:
Provided that the Minister shall at any time reconsider an application if he or she receives any new information regarding the applicant which may influence his or her original decision.
| (9)(a) | Notwithstanding anything to the contrary contained in subsection (1), the Minister may under exceptional circumstances grant a certificate of naturalization as a south African citizen to an applicant who does not comply with the requirements of the said subsection (1) relating to residence or ordinary residence in the Republic. |
| (b) | The Minister shall within 14 days after the commencement of the sittings of Parliament in each year table in Parliament the names of any persons to whom certificates of naturalization were granted under paragraph (a) in the immediately preceding year, including the reasons for the granting of any such certificate.” |
In terms of sections 9, 15 and 16 of the Act the Minister may on application issue certificates of South African citizenship. In the absence of such certificate an investigation will have to be conducted whether a person has acquired citizenship in terms of the Act.
Section 21 of the Constitution bestows the right to enter, to remain in and to reside anywhere in the Republic only on South African citizens. The admission and residence of non-citizens in the Republic is regulated by the Immigration Act, 13 of 2002.
The following extracts from this Act are of importance:
“2 (1) In the administration of this Act, the Department shall pursue the following objectives:
| (b) | facilitating and simplifying the issuance of permanent and temporary residences to those who are entitled to them, and concentrating resources and efforts in enforcing this Act at community level and discouraging illegal foreigners; |
| (c) | detecting and deporting illegal foreigners; |
(g) promoting a climate within the Republic which encourages illegal foreigners to depart voluntarily.
3 (1). The Department of Home Affairs may:
“(d) request any sphere of government or organ of State to-
(i) take actions or adopt procedures to ensure that the recipients of their services are identified as citizens and residents or foreigners; and
(ii) request that prescribed services, or licenses, or concessions or other actions be subject to proof of status or citizenship, provided that such requirements shall not prevent the rendering of such services to illegal foreigners when so required by the Constitution or a law;
(e) request anyone in the republic, who is reasonably suspected of being an illegal foreigner, to identify himself or herself as a citizen or resident, or to produce a permit to be in the Republic;
(g) apprehend, detain and deport any illegal foreigner.
(4) A foreigner may only enter the Republic-
(a) by producing to an immigration officer his or her passport to be valid for no less than 30 days after the expiry of the intended stay, and
(b) if issued with a valid temporary residence, as set out in this Act, and may only depart as set out in this Act.
10.(1) Upon admission, a foreigner may enter and sojourn in the Republic only if in possession of a temporary residence permit.
25. (1) A permanent resident permit may be issued to a foreigner upon application. The holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship.
(2) Subject to this Act, upon application, one of the permanent residence permits set out in sections 26 and 27 may be issued to a foreigner.
26. Subject to section 25, the Director General may issue a permanent residence permit to a foreigner who-
(a) has been the holder of a work permit, including one issued under a corporate permit, in terms of this Act for five years and has proven to the satisfaction of the Director General that he or she has received an offer for permanent employment;
(b) has been the spouse of a citizen or permanent resident for five years and the Director General is satisfied that a good faith spousal relationship exists: Provided that such permit shall lapse if at any time within two years from the issuing of that permit the good faith spousal relationship no longer subsists, save for the case of death;
(c) is a child under the age of 21 of a citizen or permanent resident, provided that such permit shall lapse if such foreigner does not submit an application for its confirmation within two years of his or her having turned 21 years of age; or
(d) is a child of a citizen.
27. The Director General may issue a permanent residence permit to a foreigner of good and sound character who-
(a) has received an offer for permanent employment, provided that-
(i) such foreigner has proven to the satisfaction of the Director General that the position exists and that the position and related job description was advertised in the prescribed form and no suitably qualified citizen or permanent resident was available to fill it;
(ii) the application falls within the yearly limits of available permits prescribed for each sector of industry, trade and commerce, after consultation with the Departments of Trade and Industry, Labour and Education; and
(iii) the permit may be extended to such foreigner’s spouse and children younger than 21 years of age;
(b) taking into account any prescribed requirement, has demonstrated to the satisfaction of the Director General that he or she possesses extraordinary skills of qualifications, and to those members of such foreigner’s immediate family determined by the Director General under the circumstances or as may be prescribed;
(c) intends to establish or has established a business in the Republic and investing in it or in an established business the prescribed financial contribution to be part of the intended book value, and to the members of such foreigner’s immediate family, provided that-
(i) the Director General may waive or reduce such capitalization requirements for businesses prescribed to be in the national interest or when so requested by the Department of Trade and Industry; and
(ii) the permit shall lapse if the holder fails to prove within two years of the issuance of the permit and three years thereafter, to the satisfaction of the Director General, that the prescribed financial contribution to be part of the intended book value is still invested as contemplated in this paragraph;
(d) is a refugee referred to in section 27(c) of the Refugees Act, 1998 (Act 130 of 1998), subject to any prescribed requirement;
(e) intends to retire in the Republic, provided that such foreigner proves to the satisfaction of the Director General that he or she-
(i) has the right to a pension or an irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life; or
(ii) has a minimum prescribed net worth;
(f) has proven to the satisfaction of the Director General that he or she has a prescribed minimum net worth and has paid a prescribed amount to the Director General; or
(g) is the relative of a citizen or permanent resident within the first step of kinship.
29. The following foreigners are prohibited persons and do not qualify for a temporary or a permanent residence permit:
(a) those infected with infectious diseases as prescribed from time to time;
(b) anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country with which the Republic has regular diplomatic relations in respect of genocide, terrorism, murder, torture, drug trafficking, money laundering or kidnapping;
(c) anyone previously deported and not rehabilitated by the Department in the prescribed manner;
(d) a member of or adherent to an association or organization advocating the practice of racial hatred or social violence; and
(e) anyone who is or has been a member of or adherent to an organization or association utilizing crime or terrorism to pursue its ends.
32.(1) Any illegal foreigner shall depart, unless authorized by the Department to remain in the Republic pending his or her application for a status.
(2) Any illegal foreigner shall be deported.
34.(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at a place determined by the Director General, provided that the foreigner concerned-
(a) shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act;
(b) may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner;
(c) shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands;
(d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days, and
(e) shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.
(3) The Director General may order a foreigner subject to deportation to deposit a sum sufficient to cover in whole or in part the expenses related to his or her deportation, detention, maintenance and custody and an officer may in the prescribed manner enforce payment of such deposit.
[Sub-s. (3) amended by s. 47 (b) of Act 19 of 2004.]
(5) Any person other than a citizen or a permanent resident who having been-
(a) removed from the Republic of while being subject to an order issued under a law to leave the Republic, returns thereto without lawful authority or fails to comply with such order; or
(b) refused admission, whether before or after the commencement of this Act, has entered the Republic, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months and may, if not already in detention, be arrested without warrant and deported under a warrant issued by a Court and, pending his or her removal, be detained in the manner and at the place determined by the Director General.
40.(1) The person in charge of any premises, whether furnished or unfurnished where lodging or sleeping accommodation is provided for payment or reward shall, if those premises fall within a prescribed class, in the prescribed manner keep a register of all persons who are provided with lodging or sleeping accommodation thereon, and every such person shall sign the register and furnish therein the prescribed particulars regarding himself or herself.
(2) Every person in charge of premises referred to in subsection (1) shall, when required to do so by an immigration officer or police officer, produce the register referred to in that subsection for inspection.
(3) Any person who-
(a) contravenes or fails to comply with a provision of subsection (1) or (2);
(b) gives false or incorrect particulars for the purposes of subsection (1); or
(c) hinders any officer referred to in subsection (2) in the performance of his or her functions,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.
41.(1) When so requested by an immigration officer or a police officer, any person shall identify himself or herself as a citizen, permanent resident or foreigner, and if on reasonable grounds such immigration officer or police officer is not satisfied that such person is entitled to be in the Republic, such person may be interviewed by an immigration officer or a police officer about his or her identity or status, and such immigration officer or police officer may take such person into custody without a warrant, and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter, if necessary detain him or her in terms of section 34.
(2) Any person who assists a person contemplated in subsection (1) to evade the processes contemplated in that subsection, or interferes with such processes, shall be guilty of an offence.
42.(1) Subject to this Act, and save for necessary humanitarian assistance, no person, shall aide, abet, assist, enable or in any manner help-
(a) an illegal foreigner; or
(b) a foreigner in respect of any matter, conduct or transaction which violates such foreigner’s status, when applicable,
Including but not limited to-
(viii) harbouring him or her, which includes providing accommodation; or
(ix) letting or selling or in any manner making available any immovable property in the Republic to him or her.
(2) In any criminal proceedings arising out of this section, it is no defense to aver that the status of the foreigner concerned, or whether he or she was an illegal foreigner, was unknown to the accused if it is proved that the accused ought reasonably to have known the status of the foreigner, or whether he or she was an illegal foreigner.
44. When possible, any organ of state shall endeavor to ascertain the status or citizenship of the persons receiving its services and shall report to the Director General any illegal foreigner, or any person whose status or citizenship could not be ascertained, provided that such requirement shall not prevent the rendering of services to which illegal foreigners and foreigners are entitled under the Constitution or any law.
49.(1) (a) Anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding three months.
(b) Any illegal foreigner who fails to depart when so ordered by the Director General, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding nine months.
(2) Anyone who knowingly assists a person to enter to remain in, or depart from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year.
(4) Anyone who intentionally facilitates an illegal foreigner to receive public services to which such illegal foreigner is not entitled shall be guilty of an offence and liable on conviction to a fine.
(5) Any civil servant who provides false or intentionally inaccurate or unauthorized documentation or benefit to an illegal foreigner, or otherwise facilitates such illegal foreigner to disguise his or her identity or status, or accepts any undue financial or other consideration to perform an act or to exercise his or her discretion in terms of this act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years, provided that if such civil servant is employed by the Department such offence shall be punishable by imprisonment not exceeding three years without the option of a fine.”
A “foreigner” means “an individual who is not a citizen” and an “illegal foreigner” means a foreigner who is in the Republic in contravention of the Immigration Act.
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In terms of section 42 the letting or selling or making available of any immovable property in the Republic to an illegal foreigner constitutes an offence and is illegal. It is no defense that the status of the foreigner was unknown to the accused if it is proved that the accused ought reasonably to have known the status of the foreigner, or whether he or she was an illegal foreigner.
In terms of section 44 any organ of state is obliged to endeavor to ascertain the status or citizenship of the persons receiving its services when possible and to report to the Director General any illegal foreigner, or any person whose status or citizenship could not be ascertained.
Land may be made available to a foreigner who is the holder of a permanent residence permit subject to the conditions of such permit and to a refugee to whom a permanent residence permit has been granted after 5 years continuous residence in the Republic.
Please do not hesitate to contact me for further information.
Allen West
TONKIN CLACEY PRETORIA
012 346 1278
