Legal and Practical Context: Travel to and from South Africa on a Foreign Passport

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There is significant confusion surrounding the legal position of South African citizens travelling on foreign passports, particularly where South African passports have expired. It is important to separate constitutional rights from statutory offences, and legal principle from practical implementation at border control.

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Constitutional position:

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The Constitution of the Republic of South Africa, 1996, provides clear protection for citizens:

• Section 21(3): “Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.”

• Section 21(4): “Every citizen has the right to a passport.”

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This means that a South African citizen cannot lawfully be denied entry into South Africa, even if travelling on a foreign passport.

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Statutory offence

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However, the South African Citizenship Amendment Act, 2004, creates a statutory offence:

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Section 26B – Use of foreign citizenship
A major citizen (a person aged 18 or older) who:
(a) enters or departs the Republic using the passport of another country; or
(b) uses another nationality to gain an advantage or avoid a responsibility,
is guilty of an offence and liable on conviction to a fine or imprisonment for up to 12 months.

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This creates a legal tension:

• Constitutional right: A citizen cannot be refused entry.

• Statutory rule: A citizen commits an offence by entering or exiting on a foreign passport.

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In practice, border officials are required to balance these two legal principles.

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Practical Outcomes at Border Control

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Based on more than a decade of consistent real-world experiences within the diaspora, the following scenarios typically occur:

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Entry as a citizen
If a traveller can show an expired South African passport, South African ID book/card, or proof of application for a new passport (e.g. receipt from foreign mission or VFS Global branch abroad or bank-branch BABS appointment booked to renew passport whilst in SA), officials may record the person as a citizen and mark “citizen” in the foreign passport stamp.

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Entry as a visitor (tourist status)
If no proof of South African citizenship is available, the individual may be admitted as a foreign national:

• 90 days for visa-exempt countries (including Australia, UK, EU, USA, Canada, NZ), or

• 30 days for other visa-exempt categories.

  This creates risks of incorrect visa status and accidental overstays, which can lead to bans.

• For South Africans holding a passport from a country not on the visa exempt list, they are required to apply for and be issued a valid visa before travel

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Warning endorsement

In many cases, travellers receive a formal warning and stamp in their foreign passport noting that South African citizens are not permitted to enter or exit on foreign passports and are instructed to regularise their South African documents.

 

Penalties
In theory, repeat non-compliance can result in fines or prosecution (up to 12 months’ imprisonment), but in practice this is extremely rare. Most individuals resolve their documentation after a first warning.

 

Right of entry remains intact
Despite the offence provision, South African citizens cannot be refused entry into the country.

 

Minors
Section 26B applies only to a “major citizen” (18+). Minors are therefore legally exempt from this offence and may enter or exit on foreign passports.

 

However we are aware of at least one case from August 2025 where two minors were denied departing SA due to not holding valid SA passports despite the parents attempting to apply for new children’s passports whilst in SA which was denied as a result of a block on the children’s IDs with Home Affairs. We were able to ascertain that the staff member at the foreign mission had not marked the previous and now expired children’s passports as collected 5 years prior. Whilst we were able to facilitate the Border Management Authority to issue a face-to-face apology, the family lost 3 return flights and incurred costs due to a delayed return to their country of residence. It took nearly 5 months to obtain confirmation that the ID block had been lifted. If anyone experiences issues on departure such as this, they must request assistance from the airport manager or BMA airport commander on duty.

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Departure issues
Where “citizen” is written in a foreign passport, some travellers encounter difficulties on departure. In such cases, escalation to the Border Management Authority (BMA) commander or airport manager on duty is appropriate. As a rule, citizens should not be unlawfully prevented from leaving, absent exceptional circumstances.

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Public Anxiety, Compliance, and Institutional Context

Recent public statements from other organisation and media articles have generated significant fearmongering, leaving many South Africans abroad uncertain whether they should book or cancel travel to South Africa. Many now fear the issuance of fines, detention, refusal of travel, and even the threat of imprisonment. This climate of anxiety is disproportionate to the actual legal and practical reality.

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It is important to emphasise that South Africans abroad are required to follow the law, and that the Border Management Authority and the Department of Home Affairs are mandated to enforce immigration and citizenship legislation. They are doing their utmost to ensure that travellers and citizens comply with these legal frameworks. At the same time, there is a recognised degree of institutional understanding of the systemic challenges currently in play — including confusion arising from the recent citizenship court case, widespread misinformation, poor historic communication by the department, inconsistent public messaging, and severely constrained consular services abroad, with long waiting periods for appointments and document processing.

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While legal compliance remains essential, the situation is not as dire or severe as recent fear-driven reporting suggests. Enforcement has not taken the form of mass detentions, widespread prosecutions, or systemic criminalisation of returning citizens. Calm, informed engagement, lawful compliance, and practical documentation regularisation remain the most appropriate and responsible approach.​

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Conclusion

This layered administrative reality — combined with poor historic communication, inconsistent public messaging, and limited consular capacity abroad — has directly contributed to confusion, anxiety, and misinformation within the diaspora community.

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In summary, while legal compliance remains essential and citizens must take responsibility for understanding and following the law, the current environment does not justify the level of panic being generated. The reality is legally complex, administratively imperfect, and operationally inconsistent — but it is not one of systemic criminalisation or blanket punitive enforcement. Calm, informed engagement and lawful compliance remain the most appropriate response for South Africans abroad navigating this space.