It’s not who you are, it’s who you know

Inconsistencies in the way South African citizenship rights are managed appear to be making citizenship more of a lucky draw than a legal process.

Recent media reports again highlighted controversy around the South African citizenship of the Gupta family, with calls by the South African Communist Party for their citizenship to be revoked.

This controversial Indian-born family’s citizenship was awarded under unspecified "exceptional circumstances", though it is widely understood from a statement made by the minister of home affairs that the family did not meet the prescribed requirements.

The minister granted the Gupta family citizenship status in terms of section 5(1) of the South African Citizenship Act, which states that the "minister may, upon application in the prescribed manner, grant a certificate of naturalisation as a South African citizen to any foreigner who satisfies the minister" that they meet a number of requirements.

The requirements include that they "have been ordinarily resident in SA for a continuous period of no less than five years", despite the regulations stating that this prescribed period is 10 years.

However, it is understood that the minister granted the family citizenship status by exempting them in terms of section 5(1)(g) of the act (as amended in 2010) from this prescribed period due to "exceptional circumstances".

This citizenship is in stark contrast with the situation faced by thousands of people who were born in SA and summarily stripped of their citizenship.

The Constitution explicitly states in section 20: "No citizen may be deprived of citizenship." Despite this, we find that thousands of people born in SA have been stripped of their citizenship after spending years in a foreign country.

South Africans moving to the UK on a work visa, for example, might apply for — and be granted — British citizenship after a specified period of living and working in the UK. But on applying to renew their South African passports at the high commission, they may be told they have lost their South African citizenship.

In September 2015, the home affairs minister confirmed that a majority of cases of lost citizenship related to South Africans taking up citizenship in Australia, western Europe, Canada and the US.

In most instances, South African citizens who have emigrated from SA and have subsequently acquired a foreign nationality lost their South African status because they adopted new citizenship without the prior written consent of the minister.

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Unfortunately, they did not know they were required to do this. This unexpected loss of South African citizenship has occurred in scores of cases, with a Facebook lobby group entitled the South African Dual Citizenship Campaign supported by more than 6,300 members alone.

SA is one of many countries that allows for dual as well as multiple nationality. Section 6(1)(a) of the Citizenship Act states, however, that an adult South African will lose his/her South African citizenship status should he/she acquire the citizenship of another country by some "voluntary and formal act" (other than marriage) without the minister’s consent.

It could be argued that section 6(1)(a) of the Citizenship Act contravenes both the South African Constitution and the UN Universal Declaration of Human Rights because nowhere in the act are the words "voluntary and formal act" defined, which leaves these words open to arbitrary interpretation.

An arbitrary decision is one made without regard for the facts and circumstances presented, showing a disregard for impartial procedure. The Department of Home Affairs does not follow a specific protocol to determine whether such a "voluntary and formal act" has taken place or whether it could result in a loss of citizenship.

The challenge extends to the children of South Africans too. Section 3(1) (b) (i) of the Citizenship Act of 1995, as amended, states that biological descendants of South African citizens of any age living abroad are automatically conferred with citizenship.

But in practice, if the foreign birth is not registered with the relevant South African mission in the foreign country within 30 days of the foreign birth, the child loses its right to South African citizenship status.

These inconsistencies in the application of the laws and regulations raise serious questions around the ways in which the letter of the law is applied in SA.

• De Saude is the immigration and citizenship law specialist of De Saude Attorneys.