There is a little misconception amongst many people who immigrate from the Republic and/or acquire the citizenship of another country, in that they feel that should they no longer be living in South Africa and their South African passport expires and/or they are living in South Africa and their South African passport expires but they need to travel, they can utilise the other passport.

Not many people are aware of the exact contents of the South Africa Citizenship Act[1] .  This Act which came into force on the 6th October 1995 was amended by Section 2 of Act 17 of 2004 which inserted Section 26B.  Section 26B states as follows:

“26B      Use of foreign citizenship
               A major citizen who –
(a) Enters the Republic or departs from the Republic making use of the passport of another country; or
(b) While in the Republic, makes use of his or her citizenship or nationality of another country in order to gain an advantage or avoid a responsibility or duty, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.”

On the correct interpretation of Section 26B it is a criminal offence for the holder of a South African passport or a South African citizen to enter or leave the Republic or make us of their other nationality whilst in the Republic. 

What does this mean? 
This quite simply put means that you cannot enter or leave the Republic on a passport of another country.  For example, should a South African citizen with ancestral ties to the United Kingdom immigrate to the United Kingdom and not renew their South Africa passport, then naturalise, become a British citizen and travel back to the Republic of South Africa to visit family or on business, on their British passport, they could very well be apprehended at the port of entry, detained and charged in terms of Section 26B.

At the time of writing this, the above legislation has not yet been judicially considered, however taking into account the fact that it does not adversely affects the rights, and it is a law of general application, it is submitted that this would not be unconstitutional and therefore a constitutional challenge would fail.  The fines that would be issued would also probably not amount to anything that would seriously harm but could be within the hundreds of thousands of rands.

It is submitted that fines for such an offence that would be issued primarily by a Magistrate, would depend on any previous convictions or contraventions of the offending party as well as the personal circumstances.  Therefore, one needs to always take into account your surrounding circumstances and the fact that such a fine will be seen as a criminal offence and the payment of an admission of guilt, failing which a criminal custodial sentence will be enforced on you for up to twelve months.

It is well known that it is very difficult to renew South Africa passports while abroad and therefore it is strongly advisable that South Africans living abroad immediately apply for renewal of their South African passport 180 days prior to the expiry of their current passport and if travel to the Republic is contemplated within the next 180 days, an emergency passport is applied for at the same time.  South Africa missions abroad will guide all applicants on the turnaround time through their biometric providers of the issuing of South Africa passports abroad and will assist where necessary to provide emergency travel documents should the need arise.