How can I restore my South African citizenship after it was withdrawn by the government when I left the country?

The long answer

The SCA judgment ordered explicitly that those South Africans who had lost their citizenship through the application of Section 6 (1)(a) of the South African Citizenship Act 88 of 1995 “are deemed not to have lost their citizenship”. 

In other words, the SCA ordered the retrospective reinstatement of citizenship to any person who lost their citizenship through Section 6(1)(a). The Democratic Alliance (DA) had taken the Department of Home Affairs to court on this issue some nine years ago, but the High Court dismissed the application and refused leave to appeal. Thereafter the DA successfully applied to appeal to the Supreme Court of Appeal. 

However, in terms of Chapter 8, Section 165-180, Courts and Administration of Justice of the Constitution, the Constitutional Court must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force.

Thus, the SCA judgement that Section 6 (1)(a) which was used to withdraw citizenship is unconstitutional and that those who had lost their citizenship through that part of the Act “are deemed not to have lost their citizenship’ must first be confirmed by the Constitutional Court before citizenship is restored”.

In terms of Section 172 (2)(d) of the Court Rules, “Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”

Immigration lawyer Gary Eisenberg said that if the Department of Home Affairs appeals the SCA judgement, it could still be amended or even overturned, but he believed that it would be confirmed.

Kyle Fyfe of werksmans.com attorneys said that confirmation of the SCA’s finding of invalidity was “… not a foregone conclusion given that the High Court had initially dismissed the DA’s application.”

Once the SCA judgment has been confirmed – or amended – you could take documents such as your birth certificate, ID and passport to the South African Embassy where you are living. As Home Affairs often neglects to inform its officials of changes in the law after the courts have made findings, it would also be wise to take some written evidence of the Constitutional Court’s findings when you go to the Embassy.

Usually in applying for citizenship, information on ID, passports, etc. would be referred to the South African Department of Home Affairs to check against the National Population Register, and this could take up to eight weeks. 

In summary: You need to wait for the judgment to be confirmed or amended before your citizenship can be reinstated. Once the judgment is passed, you can take all your documents like ID, birth certificate and passport to the South African embassy and ask them for help. You may need to inform them of the judgment. Reinstatement of your citizenship could take up to eight weeks.

Wishing you the best,
Athalie