What are the Citizenship laws Home Affairs use to allocate a child citizenship ?

The short answer

Children born after October 2014 will need a visa from Home Affairs.

The whole question

I am a foreign national and I’ve had permanent residency since 2011. I’ve been married for ten years and three of my children were born in South Africa, making them South African citizens. However, my last born was denied citizenship by Home Affairs. They stated that he should apply for a visa instead.  Shouldn’t he be a citizen like his siblings?

The long answer

The South African Citizenship Amendment Act, 2010 (Act No. 17 of 2010) came into operation on 1 January 2013 and unfortunately it means that children of permanent residents born after October 2014 no longer qualify for automatic citizenship or permanent residency. It means that children born after October 2014 will need a visa from Home Affairs.

The visa your youngest son must apply for is temporary residency, for example under the relatives category, and he will also need to apply for permanent residency.

The law now says:

“Any person born in the Republic of parents who have been admitted into the Republic for permanent residence and who is not a South African citizen, qualifies to be a South African citizen by birth, if:

(a) he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and
(b) his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992).

So I’m afraid your son can only become a South African citizen after he is 18 years old, provided that his birth is registered.

 

Home Affairs has denied my application to change my surname to my spouse as I am in a same-sex marriage, and . Is this legal ?
The short answer
Home Affairs is wrong, but it is complicated.
The whole question
I am a South African citizen living in the USA. I got married (same-sex marriage) in 2019 and applied for a new passport reflecting my new name change (surname) on the passport in 2024.
I received confirmation from Home Affairs that they have now refused to change my name because they do not recognize same sex marriages and name changes are not allowed on the passport. Below is the correspondence from them:
"Please note that we have received verification of the status of your passport:
Your passport application was received by DHA on the 12 July 2024
On the 10 August 2024  your application was moved to the Citizenship for verification of SA Citizenship.
Next your application was moved to the Marriage Section to confirm your marital status.
According to the DHA, with regards to same sex civil unions name changes are not permitted, thus all parties concerned will keep their last name. ie: Jason Roelof Saunders will remain Jason Roelof Saunders and not Turner.
Thereafter  your passport will be moved for capturing and processing and will take another 6-8 Months."
Is this allowed? I feel that this is some sort of discrimination, as I have many women friends from South Africa who got married and changed their names to match their husbands with no issue. I would not care if it were not for my line of work. I am an airline pilot and am having many issues when travelling to different countries because my passport and green card documents all have mismatched names. It is now directly affecting my job.
The long answer
Thank you for your email asking if Home Affairs can declare that you may not change your surname to your partner’s on your passport because “with regard to same sex civil unions, name changes are not permitted.”
This is most certainly wrong: in South Africa both partners/spouses in a civil union partnership are allowed to choose what surnames they will be known by. Section 13 of the Civil Union Act explicitly gives spouses/partners this choice.
The Civil Union Act does not make any explicit provisions to recognise foreign same-sex unions, but under the common-law definition of marriage, a foreign same-sex marriage is recognised as a marriage in South African law.
“Couples who marry in terms of the Civil Union Act may choose whether their union is registered as a marriage or a civil partnership. In either case, the legal consequences are identical to those of a marriage under the Marriage Act, except for such changes as are required by the context. Any reference to marriage in any law, including the common law, is deemed to include a marriage or civil partnership in terms of the Civil Union Act; similarly, any reference to husband, wife or spouse in any law is deemed to include a reference to a spouse or civil partner in terms of the Civil Union Act.” (Wikipedia).
But the problem is that there are contradictions between Section 26 (1) of the Births and Deaths Registration Act and the Civil Union Act: on the DHA website it states that “Passports are issued in accordance with your names as they appear in the National Population Register (NPR) at the time of your application. Any changes to your names must be applied for, finalised and recorded in the NPR before you submit your passport application.”
It seems that it costs R375 to apply for a change of name to the NPR.
A Rhodes University thesis by LLB student Chris McConnechie notes that section 26(1) of the Births and Deaths Registration Act says that no individual may describe himself by any other name than the one recorded in the NPR without permission of the Director General of Home Affairs – except that women can change their surnames upon marriage without applying for permission. In a marriage as opposed to a civil union, a man cannot change his surname without permission while a woman can; in a civil union both partners are able to change their surnames.
As you know, all discrimination on the basis of sexual orientation and against same sex couples is outlawed by Section 9 of the Constitution and by the Promotion of Equality and Prevention of Unfair Discrimination Act. But given the difficulties, delays and frustrations routinely experienced by people when dealing with Home Affairs, it may be quicker and easier in the short term to apply to the Director General of Home Affairs for permission to change your surname, and then to re-apply for your passport.

Home Affairs Minister Leon Scheiber says his department will support an investigation by the Department of International Relations and Co-operation (Dirco) into reports of a South African Diplomat in Dubai allegedly selling visas and passports to United Arab Emirates (UAE) citizens wishing to come to South Africa.

This comes after the Sunday Times reported that Andrew Tsepo Lebona, South Africa’s consul-general in Dubai, committed several security breaches.

Affected visa’s to be cancelled  

In a social media post on X Schreiber said: “Home Affairs will support the urgent investigation of this DIRCO employee to cancel the affected visas,” he said.

Corruption a threat to national security

Schreiber said corruption within the Home Affairs Department threatened national security.

“As I warned in Parliament this week, corruption that threatens our national security will continue in the absence of wholesale digital transformation,” continued Schreiber on X.

According to the Sunday Times, Lebona had also used his position to grant his adult son a diplomatic passport and connect him to business deals in the UAE.

“Other officials said Tumelo Lebona was using his father’s position to solicit business opportunities in the UAE and had travelled to South Africa with businesspeople from the wealthy nation for similar purposes,” reported the Sunday Times.

Lebona has now been recalled to South Africa and has been asked to explain himself.

Lebona was employed by Dirco but also represents the Department of Home Affairs in Dubai. He performs various functions for South Africans in the city including issuing them with travel documents.

Lebona is one of several Home Affairs officials who has been caught selling passports and other crucial documents.

He is responsible for assisting South Africans living or holidaying in Dubai should they encounter legal and other problems requiring government intervention.

According to the government insiders, the probe found that Lebona arranged for his 45-year-old son, Tumelo Michael Lebona, to be issued a UAE diplomatic visa even though he did not meet the qualifying criteria — being younger than 25 or in the employ of Dirco.

 Hilda Sedinjane turned to the Limpopo High Court in Polokwane for an order that she be recognised as the true wife of deceased Seabela Malatji. The parties concluded a customary marriage in 1988 as evidenced by a lobola certificate and four children were born of the marriage. The couple drifted apart over the years and the applicant (Sedinjane) left the matrimonial home around late 1992. In February 2014, the deceased entered a civil marriage with Anare Malatji (first respondent) as evidenced by a home affairs department marriage certificate. The deceased died in March 2021 from natural causes and the first respondent was appointed executrix of the deceased estate by the master of the high court. Upon attending the master of the high court offices, the applicant was advised that the lobola certificate that she produced was not proof of marriage and was further advised that the first respondent had, by virtue of her civil marriage, already been appointed executor of the deceased estate. The applicant lodged an application for the court to declare the civil marriage of the first respondent and the deceased null and void. Further, for the recognition and registration of her customary marriage to the deceased and issuance of a marriage certificate in that regard. The applicant also sought a declarator that she is the only wife of the deceased and an order withdrawing the letters of executorship issued in the name of the first respondent in respect of the deceased estate. In opposing the application in both her personal and representative capacity as executrix of the deceased estate, the first respondent did not dispute that the applicant and the deceased were married, but argued that such a marriage was dissolved in 1992 when the applicant walked out of the matrimonial home eight years before the Recognition of Customary Marriages Act came into effect in November 2000. In response to this argument, acting judge Malose Monene stated that the court was struggling to understand on what grounds the first respondent claimed that the marriage between the deceased and the applicant was dissolved. “We are left none the wiser as to where, when, and how the dissolution of the customary marriage is alleged to have happened. One is left with an impression that the first respondent takes the inexplicable quantum leap in logic that the mere admitted walking out of the matrimonial home by the applicant in 1992 is conclusive proof of a divorce which happened eight years before the coming into effect of the act.” That, in the court’s view, was misplaced reasoning by the first respondent. The acting judge acknowledged that desertion may be grounds for a divorce, but it is not and cannot of itself constitute a dissolution of the marriage or a divorce. The court declared that the civil marriage entered into between the first respondent and deceased unlawful and void. The letters of executorship in respect of the deceased estate issued to the first respondent by the master of the high court were set aside. The customary marriage entered into between the applicant and the deceased is recognised as a customary marriage entered validly in terms of the Recognition of Customary Marriages Act and the minister of home affairs was directed to register that customary marriage and issue the applicant with a marriage certificate. The first respondent was ordered to pay the costs of the application.

I can't open a bank account because I have a Visitor's Visa. What must I do?

The short answer 

You can get an endorsement on your spousal visa. Here's how. 

The whole question

I left everything behind to live with my husband in South Africa. However, while staying here I've been unable to open a bank account because my visa states that it is a 'Visitor's Visa'. As a woman, I cannot stay idle and wait for my husband's salary. I need to work and save some of the money I earn and receive from my husband, but it's nearly impossible since I can't open a bank account. I'm still going to be staying here for the next 3 years. Is it possible for spousal visas to not to be labelled as 'Visitor's Visas'?

The long answer

Thank you for your email explaining the difficulties of opening a bank account as someone on a spousal visa. It must be very frustrating to be in the country for the next three years with your husband and not to be able to open a bank account.

The spousal visa, which is Visitor Visa Section 11 (6), is called a Visitor’s Visa because it does not grant rights to stay permanently. You can only open a non-resident bank account with the spousal visa, and you are not allowed to deposit rands in it, which makes it useless for your purposes.

You can get an endorsement on your spousal visa that will allow you to work but you can only apply for the endorsement once you have a job offer from a specific employer and the endorsement will only be for that employer.

You can also get an endorsement on your spousal visa to run a business, but you will need to prove that you’ve got a business structure in place like a Sole Proprietorship or Proprietary Limited ((Pty) Ltd).

Once you have been married for five years and have a valid spousal visa you can apply for a spousal permit which is a permanent residency and then you don’t need endorsements to work and open bank accounts.

You may want to ask advice on getting an endorsement on your spousal visa from the following organisation