Possible practical challenges of Return/Repair of South African Citizenship

To all Dutchies who are former South Africans. Here we discuss the Possible practical challenges of Return/Repair of South African Citizenship, and possible issues with the Dutch nationality/authorities.

Intro the South African Law and the Supreme Court of Appeal verdict The South African citizenship / nationality law has since 1995 stated that adult South Africans would lose their nationality / citizenship (automatically) when obtaining another citizenship/nationality. For the reader’s information, the Dutch law has similar provisions leading to automatic loss. In fact, the Dutch law is even more strict/harsh than the South African law. But let’s focus on South African law.

To many their delight the Supreme Court of Appeal (South Africa) judged on 13 June 2023 that automatic loss of South African nationality due to acquisition of another nationality (section 6 paragraph 1a) to be unconstitutional and therefore invalid.

Let’s be clear, I am a Dutch lawyer specialised on the Dutch nationality/citizenship law. I am not a South African lawyer but have/had quite a few South Africans as clients. I have been reading up on the court’s welcomed decision. Note that Home Affairs have stated not to appeal the court’s decision. The Supreme Court of Appeal judgement needs to be ratified by South African’s Constitutional Court in accordance to the constitution, section 167 paragraph 5. Thus, the Supreme Court of Appeal judgment does not come into effect until it is confirmed by the Constitutional Court. The Constitutional Court may still overrule the Supreme Court of Appeal judgement but that seems unlikely. It is expected that the constitutional court may take 6 to 12 months to decide upon this (thus around Dec ’23 - Jun ’24?).

If the court verdict is upheld, what will then happen? The South African law will certainly need to be changed. But how will this change look like? I expect that there will be two choices;

Hurray! Yay! Yipee! Hoera! When the court verdict is upheld, many will feel that their bond with South Africa is officially acknowledged, actually repaired, and that they are no longer emotionally divided from their family and country of birth. For some this is emotionally very important and their sense of loss removed. However, there are also practicalities to consider.

Possible SA bureaucratic and practical challenges for the concerned. If the law is changed in such a way that it requires some form of registration or confirmation that the person is (again) South African then we may be looking at a new procedure where the person needs to choose. However, that would be somewhat contrary to the Supreme Court's decision. Therefore it may just need a formal acknowledgement that the person's citizenship has been (retrospectively) repaired. This can be done through a Determination of Citizenship Status process which already exists, or something similar (Currently form DHA 529 and extra SVP – 109E for those born in Namibia). The Determination is not a request to get the citizenship back, but merely what the name entails, a confirmation of what the status then already is. Once such determination confirms that the previous loss is void then citizens should just be able to apply for a passport. Let’s hope it stays a simple process, but I can’t foresee how this will pan out.

Travel to SA A South African passport would be a requirement for those wishing to travel to South Africa. South Africa (unlike the Netherlands) requires its nationals by law to travel in and out of the country on a South African passport. Section 26(B) of the South African Citizenship Act makes it a punishable offence for adults to leave or enter South Africa on a foreign passport. Thus, requiring your South African passport.

Of course, not travelling and thus not applying for a South African passport does then not affect your citizenship/nationality. Nationality is a status; a passport is merely a travel document. There may be practical issues for South Africa in this, as some former South Africans may not be aware of these changes to their nationality status and travel in good faith on their other passport. At the border they may be confronted with this, or possibly they travel in and out without realising anything and missing out on any SA specific rights. The future will show how the authorities will guard this and perhaps show lenience and provide solutions. The Minister of Home Affairs should create regulations for these new circumstances/possibilities.

I still have a valid SA passport!? Think again. Your South African passport may have a future expiry date printed on it which makes it look valid. However, once you lost your nationality/citizenship your passport became invalid. The South African Passports and Travel Documents Act, 1994, makes the Minister of Home Affairs responsible and allows the minister to create regulations. At this point I do not have these regulations at hand, forgive me, I am not a SA lawyer. The act states:

South African citizen entitled to South African passport Section 3. Subject to the provisions of this Act, every South African citizen shall be entitled to a South African passport.

It is clear that when you lost your citizenship you lost your entitlement. Irrespective if the South African authorities learned about your loss, or not. If you did at any point notify the South African authorities then it is likely that your passport has been withdrawn as being valid, even if you still possess it. However, this is South Africa and perhaps this never happened. Either way, you don't want to test this out. Testing this out may result in delays and missed flights or worse. Perhaps the minister will decree that these passports/travel documents can be used again but that seems unlikely (would safe paper).

Regulations Section 4 (1). The minister may make regulations regarding- (c) the circumstances under which the issue of a South African passport or travel document may be refused or such passport or travel document may be withdrawn;

Final warning, the Act makes anyone who doesn’t follow the rules, “contravenes” the Minister’s “regulations” guilty of an offence punishable by fines or up to 5 years in prison. If you still have an intact South African passport which shows a validity date in the future and you travel on it, then you would of course be very surprised if at the border the system says ‘not valid’. The passport’s validity may have been withdrawn from any South Africa database. We can only guess the consequences when you used this in good faith. Of course, if you are retrospectively South African then you have a right to a passport, maybe even a claim on the current/previous one. But do you want to figure that out at the border, or in court? Better be safe than sorry and either get confirmation that your passport will still be accepted, or apply for a new one. Remember, we don’t yet know what regulations for this will come in place once the court’s decision is confirmed.

You likely need to investigate and sort these kinds of practicalities with respect to SA on your own. Because previous loss of nationality/citizenship was automatic, by operation of the law, it is almost impossible for the South African authorities to have records of all those affected. They can’t just send everyone a letter with instructions or re-register you as South African. And even if they did have some records, people may have moved to a new address. Knowing South Africa, we can expect that there will be no proactive approach from the authorities towards individuals. It is therefore up to the individual to sort this all out. The minister of Home Affairs can of course create publications and instructions for all these practicalities. The court’s decision may also create issues for your new country/nationality.

Challenges and formalities in the other country! The downer of the Netherlands. The Netherlands nationality/citizenship law (Article 9 paragraph 1b) requires a person becoming Dutch through naturalisation to lose or renounce his/her other nationality/citizenship. This was sort of always the case, except for the period 01 Jan 1992 to 01 Oct 1997. There are sometimes exceptions possible, but this was not the case for those concerned. With the revamped Dutch nationality/citizenship law of 01 April 2003 it now states that an application for naturalisation will be refused if:

“de verzoeker die een andere nationaliteit bezit, niet het mogelijke heeft gedaan om die nationaliteit te verliezen dan wel niet bereid is het mogelijke te zullen doen om, na de totstandkoming van de naturalisatie, die nationaliteit te verliezen, tenzij dit redelijkerwijs niet kan worden verlangd”

“the applicant who has another nationality has not done everything possible to lose that nationality or is not prepared to do everything possible to lose that nationality after the naturalization has been achieved, unless this cannot be reasonably expected”

Where the Dutch authorities do not make exceptions, such as being married to a Dutch national or where the requirement is not proportional/reasonable, they will look at the law of the respective country. If by becoming Dutch you would automatically lose the other nationality then this aligns with Dutch law and that is it, normally the end of story. This is the case for South Africans who do not request to retain their South African nationality/citizenship. The so called South African Retention Letter would not comply with the Dutch law, unless the Dutch law allows retention by an exception in Dutch law.

What will happen in the Netherlands? What will happen in the Netherlands is still an unknown factor. It is up to the authorities to provide a policy and regulation for this, to my knowledge, unique situation.

The Risk of having to renounce after all. When we look at the basic premise of the law it can be argued that the affected persons are suddenly dual nationals (if no other nationalities are in play). And consequently, that they still need to comply with the Dutch law and now actively renounce their South African nationality themselves. However, that is practically a very difficult supposition to make.

From a government point of view, it will also be a challenge to police this. Since 2014 the Dutch civil registry (BRP, municipality records) does only list the primary nationality of a resident person. Thus, authorities would not be able to easily see who has more than one nationality or was South African before. From naturalisation records it could potentially be possible to find the persons affected. However, to then be able to contact them is another matter. Some will have moved to other destinations in the EU or elsewhere in the world. There is no requirement to keep a current address when resident outside the Netherlands. It would be administratively a big undertaking for the authorities to find the affected people in the Netherlands, let alone the almost impossibility for those now residing outside of the Netherlands.

If then people aren’t contacted and thus can’t submit evidence that they renounced their nationality the Dutch law states that someone’s nationality can be withdrawn/revoked. It would not be reasonable or proportional to withdraw someone’s Dutch nationality on the basis that they couldn’t be reached. And it would be discriminatory and not be fair to then only target those who can be found.

In addition, legally it can be argued that the affected person did attempt to lose his/her nationality in good faith by not applying for retention. Therefore, it can be argued that the person has done its best to lose his/her nationality. That the South African court and law may make adjustments to someone’s status is beyond their control and it can’t be reasonably expected that they would still need to renounce their nationality after a period of time, say a year.

NL/SA Dual Nationality as target In fact, in a regular Dutch naturalisation those who actively try to renounce their nationality and don’t get cooperation from the foreign authorities can be forgiven by the IND, and thus they can keep their other nationality. The IND will chase new Dutchies on this for about a year, sometimes longer. These persons must really do their best to renounce and evidence this to the IND before such exceptions allowing dual nationality are made on an individual basis.

I would say that seen the practical and operational challenges for the Ministry of Justice (IND), the proportionality and fairness for the individuals affected in mind, it is beneficial to prepare a policy or further regulations on this situation in advance. We would kindly request that the affected persons are not going to be stripped of their Dutch nationality and thus are allowed to keep their sort of newly regained/corrected South African nationality as well.

Going it alone,… It is of course OK to make these kind of submissions to the IND/municipality by yourself. However, if you want further assistance to support you with legal arguments then please do not hesitate to contact us.

Other aspects

I do not want to be South African anyway! If you do not want to get the South African nationality back (retrospectively) then you may indeed still need to personally renounce your South African nationality. I am a strong champion of multiple nationalities and I do not want to go into the pros and cons here. We respect your decision.

Retrospectivity For the Dutch law the retrospectivity question is an important factor. If South Africa decides that the nationality was never deemed lost then we are talking about a retrospective situation which conflicts with the Dutch law. However, if South Africa decides that a law reinstates the nationality, meaning you did lose it but get the nationality back some time after, then the Dutch law will for most (not all) make exceptions. If you are Dutch and get another nationality (back) then you can stay Dutch if:

1. You were born in the country and resident there when getting the nationality back (few)
2. You lived in South Africa as a minor for at least 5 years (most)
3. You are (already) married to a Dutch national, when you get the other nationality (some).

But there will be some who do not comply with any of these current Dutch exceptions in law. I am thinking of (your) children born outside of South Africa and those who moved out of South Africa when young. And evidencing residency for 5 years as a minor (decades later) is also not always easy in a country that does not have a centralised civil registry like the Netherlands.

Retrospectivity also affects children born after parents lost, or did not lose, their South African nationality. Because if the parents were never deemed to have lost their nationality, then the child was possibly born South African (retrospectively). For the family unit alone I think that South Africa would do well to determine that loss never occurred and thus that retrospectivity applies here. Also, for other reasons I think this is where it goes. Either retrospectivity or the case is thrown out altogether (hope not). However, I am not a South African lawyer and can be wrong in my expectations.

As to the Dutch nationality law and the above three exceptions. For those still wanting to naturalise and consider one of the above to get the South African nationality back while staying Dutch, please seek legal advice. There are certain risks in such a creative but legal route. You need to know the risks and also check that you do qualify and have the right evidence for the Dutch bureaucratic processes.

Help, I did get a Retention letter and then renounced citizenship when confronted by the Dutch IND. In which case the South African court case will not have any bearing on you. You have (arguably) willingly and voluntarily chosen for the Dutch nationality over the South African and your renunciation is not undone by this court verdict. The Dutch nationality law follows the principle of a single nationality more strictly. However, the many exceptions in the Dutch law do allow for a Dutch national to get another nationality (back) under the circumstances numbered 1 to 3 as explained under retrospectivity above. Please ensure that you do not undertake to get the nationality back lightly as you will need to have proper evidence to show that you comply with these Dutch exemptions. In addition, there are a number of risks to these kind of creative but legal routes to dual nationality. I strongly advise you to seek legal advice and assistance in such a route.

Help, I did get a Retention letter and did not inform the IND / Dutch authorities You are in breach of your commitment and the law. You have provided a false statement and you have gotten the Dutch nationality under false pretence. Your Dutch citizenship can be revoked/withdrawn. Seek legal advise/help. If the Netherlands will make concessions you may be lucky that you got away with it so far. Please note, sometimes people get away with it for some time but ultimately they are often found out. Don’t do it, stay within the law. There are likely better ways.

FAQ - Frequent Asked Questions

QUESTION: Are South African Citizens applying for another Citizenship AFTER June 2023 still required to obtain a Retention letter as they can still lose their SA citizenship? Is it only ruled “unjust” for individuals that lost their SA Citizenship PRIOR to June 2023?

ANSWER: We don’t know yet what the institutional court is going to say or do. However, for the time being Retention letters are still required. If the court judgment is upheld then any Retention letter since 1995 was not necessary. It is unlikely that June 23 verdict date will become a condition or issue in the change of law or regulations. So, for the time being, until the final court decision and any change of law, and perhaps some procedural regulations, the Retention letter stays a requirement. If later it is decided that the retention letter was not really needed then nothing is lost by having it. And with respect to Dutch law, it doesn’t like Retention and only allows it for some exceptional cases according to Dutch law. For South Africans the usual exception is (already) being married to a Dutch national.

Pages which may be of interest to you:

South African Citizenship Act and Dual Nationality

South Africa Documentation Services