JOHANNESBURG – The Home Affairs Department is now tasked with ensuring the reinstatement of South Africans who lost their citizenship due to the implementation of the Citizenship Act.

The Constitutional Court last Thursday confirmed an order of constitutional invalidity declared by the Supreme Court of Appeal, giving effect to the declaration.
The provision stipulates that major South Africans who voluntarily acquire the citizenship of another country, outside of marriage, cease to be South Africans in accordance with the act.

The apex court ordered that all South Africans who lost their citizenship as a result of this provision are deemed not to have lost it.
The order of the constitutional court has a retrospective effect, meaning that it is intended to have a backdated consequence, affecting events that preceded it.

In this matter, all citizens who previously lost their citizenship will be deemed not to have lost it.
The constitutional court found that there was no rational reason why a South African would automatically lose their citizenship by acquiring the citizenship of another country.

Although Section 6 subsection 2 allows persons who may lose their citizenship as a result of the operation of the act to apply to the Minister of Home Affairs to retain their South African status, the court finds that this does not save the provision from unconstitutionality.
Justice Steven Majiedt, “The existence of a ministerial power to exercise discretion in terms of Section 6(2) to alter what is otherwise an automatic loss of citizenship is no answer to the question of why citizenship must be lost in the first place.

“The court further notes that section 6(2) of the act provides no criteria at all on how the minister’s discretion is to be exercised and what it’s bounds are. The legislature argues that dual citizenship is permissible, subject only to ministerial discretion. This reasoning is unclear and utterly irrational.”
The apex court also finds that the provision gives the minister broad, unchecked power, which cannot be defended given the violation of fundamental rights.

Notarial cohabitation agreements and spousal / ‘life partner’ visas and permanent residence permits
A Notarial Cohabitation Agreement is essential for couples in South Africa who wish to formalize their relationship while living together without marriage, particularly when applying for a spousal / ‘life partner’ visa and permanent residence (‘PR’) permits.
This type of agreement serves as a legal document that outlines the rights and responsibilities of each partner, providing clarity and protection, especially in matters of financial arrangements, property rights, and maintenance obligations.

Importance of Notarial Cohabitation Agreements
• Legal Recognition: While cohabitation does not automatically confer the same rights as marriage in South Africa, a Notarial Cohabitation Agreement can provide some degree of legal recognition. This is crucial for couples seeking to apply for a spousal / ‘life partner’ visa and PR permit, as it demonstrates the stability and commitment of their relationship and shared financial responsibilities to immigration authorities.
• Financial and Property Rights: The agreement typically includes provisions for how financial matters will be managed, how property will be owned and divided, and what happens in the event of separation or death. This is particularly important for protecting vulnerable partners and ensuring fair treatment in case of disputes.
• Requirements for Visa and PR Applications: A Notarial Cohabitation Agreement may be required to serve as evidence that the couple is in a genuine and committed relationship which is a legal requirement for these applications.

Key Components of a Notarial Cohabitation Agreement
1. Financial Arrangements: Details on how expenses are or will be shared and managed during the cohabitation.
2. Property Rights: Specifications on ownership and division of property acquired during the relationship.
3. Maintenance Obligations: Provisions for financial support during the relationship or after separation.
4. Dispute Resolution: Procedures for resolving conflicts that may arise between partners
5. Children’s Rights: If applicable, arrangements regarding custody and support for any children involved.

Process of Drafting and Notarizing
To create a legally binding Notarial Cohabitation Agreement:
• Both parties must voluntarily agree to the terms.
• The agreement must be in writing and signed by both parties in front of a Notary Public.
• A protocol number must be allocated to ensure it is binding on third parties, such as government institutions involved in visa and immigration applications.

Conclusion
For couples in South Africa considering cohabitation without marriage, entering into a Notarial Cohabitation Agreement is not only prudent but often necessary for legal recognition and protection. This agreement not only supports spousal visa and PR applications but also clarifies shared financial responsibilities and property rights, ultimately safeguarding both partners’ interests throughout their relationship. For further guidance on your immigration application
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As of the latest updates, South Africa offers e-Visas to nationals from several countries. The e-Visa system allows eligible visitors to apply online for tourism or business purposes.

Here are the countries currently eligible for an e-Visa:
1. Albania
2. Algeria
3. Belarus
4. Bulgaria
5. Cameroon
6. China (negotiations ongoing)
7. Comoros
8. Congo (Republic of)
9. Côte d'Ivoire (Ivory Coast)
10. Croatia
11. Cuba
12. Egypt
13. Ethiopia
14. Guinea
15. India (negotiations ongoing)
17. Indonesia
18. Iran
19. Kenya (already exempt from visa requirement)
20. Liberia
21. Lithuania
22. Mali
23. Mexico
24. Morocco
25. Niger
26. Nigeria (negotiations ongoing)
27. Pakistan
28. Philippines
29. Romania
30. Saudi Arabia (already exempt from visa requirement)
31. Senegal
32. Slovakia
These countries can apply online for an e-Visa, which simplifies the process by allowing applicants to remain in their home country while awaiting approval

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Children born in South Africa to parents who are asylum seekers or refugees qualify for South African citizenship upon reaching 18 years of age, under the South African Citizenship Act. Below is the detailed procedure:

Eligibility Criteria

To qualify, the applicant must:
1. Birthplace and Residency:
o Be born in South Africa and have resided in the country from birth until the age of 18.

2. Legal Documentation:
o Be included in the parents' asylum seeker or refugee file and have maintained valid status throughout their residency..

3. Valid Birth Certificate :
o Have a birth certificate issued under the Births and Deaths Registration Act (BDRA) 51 of 1992.

Application Process
1. Compile Supporting Documents
o South African Birth Certificate:
o Issued at birth or during a late registration process.
o Proof of Residency in SA :
o Parental Documentation:
o Copies of the parents' valid asylum seeker or refugee permits.
o Language Proficiency:
o Certificates or letters confirming proficiency in an official South African language.
o Proof of Identity:

2. Attend an Interview:

o The applicant may be required to attend an interview at the DHA.

3. Receive Confirmation:

o If the application is approved, the applicant will receive a certificate of naturalization as proof of citizenship.

Key Considerations
1. Timeliness:
o Applications must be submitted after the child turns 18 and no later than a reasonable time afterward to ensure compliance with the law.

2. Accuracy:
o Ensure all forms are accurately filled out and documents are valid and up to date.

3. Statelessness Prevention:
o The procedure aims to prevent statelessness by providing a clear pathway to citizenship for children who meet the criteria.

Additional Assistance
If the process seems complex, applicants can seek help from:
• Legal aid organizations specializing in refugee and asylum seeker rights.
• Immigration consultants or lawyers such as ourselves familiar with South African citizenship laws.

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Top 5 Things to Know about South African Visa Renewals

When is it a good time to start with the renewal ?
Picture this – it’s Monday and in a quiet moment you decide to go through your foreign employees’ documents.

To your shock you discover that one employee’s visa is due for renewal – at the end of the week.

Suddenly, your Monday is a whole lot bluer! You have no idea how you’re going to do this. You don’t even know if it’s still possible to submit a renewal!

Take a deep breath – this does not have to happen to you.
You can avoid any visa renewal shocks and surprises simply by keeping these 5 facts in mind:

1. Did you know applications must be submitted at least 60 days before the expiry date of the visa

South Africa’ Immigration Act requires visa holders to submit renewals at least 60 days before the expiry date of their visa. Visa holders may also submit renewals earlier but no earlier than 6 months prior to a visa’s expiry date.

Our advice? Don’t wait for the 60 days! Submit as early as possible to allow for unforeseen hiccups.

2. Start the groundwork early
The process of renewing a South African visa is the same as applying for a new visa. For this reason, it is advisable to start preparing for a renewal well in advance.

When it comes to work visas specifically, there are often multiple steps that need to be followed before being able to submit the renewal to the authorities. Given the backlog at Home Affairs due to the COVID-19 pandemic, we recommend starting the preparation process 12 months in advance.

3. The visa holder must meet all the requirements again
To apply for a visa extension, the visa holder must be able to meet the requirements of their visa again. This includes any new requirements or changes to requirements that were made by the Department of Home Affairs since the previous application or renewal.

Applicants who can’t meet the requirements of their visa will most likely not get a visa extension.
That does not mean it’s the end of the road! Unsuccessful renewal applicants can get assessed against all of South Africa’s immigration requirements to see if they perhaps qualify for another visa that lets them work in South Africa.

4. Keep critical documentation up to date
Want to save yourself a lot of headaches? Ensure that documentation with expiry dates are always valid. By keeping documents up to date, you’ll see to it that you’re ready to proceed with renewals as soon as it’s necessary.

Police clearances is one example of documentation with an expiry date. These documents are only valid for 6 months from the date of issuance. The passport expiration date is also an important one to keep in mind. It is impossible to apply for a visa with an expired passport.

5. Extensions must be submitted in South Africa
All extensions must be submitted in South Africa, at a VFS application centre. Visa holders can’t submit extensions outside of South Africa.

Need help with South African visa renewals?
Our corporate team can assist you with all types of South African visa renewals. The team will guide you through the requirements and work with you to submit a complete application.

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