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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Loss and Reinstatement of Citizenship: Legal and Administrative Reality

The current confusion must also be understood in the context of the Constitutional Court ruling of 6 May 2025 striking down Section 6(1)(a) of the South African Citizenship Act, which previously provided for the automatic loss of South African citizenship upon voluntary acquisition of another citizenship without ministerial permission whereby a citizen was expected to obtain a retention of SA citizenship letter prior to acquiring foreign citizenship . This provision has now been declared unconstitutional and invalid.

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While the law framed this as “automatic loss”, the practical reality has always been different. The onus has always remained on the individual to ensure that their citizenship status is correctly recorded with the Department of Home Affairs. Critically, what was legally described as “automatic” did not translate into automatic administrative processes. Many wrongly made the assumption that somehow the foreign country’s home office would notify SA Home Affairs who would then update the person’s citizenship status however that was not the case. Individuals were still required to notify Home Affairs so that their status could be updated on the National Population Register (NPR). Due to extremely poor communication by the department over many years, many citizens were unaware of this requirement.

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As a result, several categories now exist:

1. Those whose citizenship status was changed on the NPR
   These individuals are eligible to use the reinstatement portal, which is designed for people whose citizenship was administratively removed and who now wish to regain South African citizenship following the court ruling.

2. Those who cannot or do not wish to be reinstated
   Despite the court’s blanket ruling, there are individuals who either cannot be reinstated as they now have citizenship of a country that does not allow dual citizenship or they simply do not wish to be reinstated. The department is aware of this reality, which is why there has been no automatic mass reinstatement. It is anticipated that an opt-out mechanism will be introduced in due course for those who do not wish to regain citizenship so they can notify the department they choose to remain as non-citizens.

3. Those who never notified Home Affairs
   For individuals who never informed the department and therefore never had their citizenship status changed on the NPR, Home Affairs has always continued to regard them as South African citizens. Legally and administratively, they have never been recorded as having lost citizenship and therefore cannot be “reinstated.” For these individuals, the correct legal route to change status remains formal renunciation of South African citizenship, as they are still recorded as citizens in the state system. It appears that renunciation applications are taking in excess of 8-12 months to be processed and until the applicant has officially had their citizenship revoked, they remain a citizen and should comply with the laws and travel regulations for citizens.

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Uncertainty of citizenship status

For those unsure of their status, the first step of the reinstatement portal is designed for individuals to check their ID against the National Population Register.

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Old ‘book of life’ and previous format of ID’s

If you emigrated in the late 1980s to mid 1990s and never acquired the more modern green barcoded ID book you may only have the old ‘book of life’ (blue book) or the orioginal 16 page green ID book (1980s) with the now outdated ID format which was changed during the transition into democracy. The old format of ID is not recognised by the reinstatement portal and this is a matter the department needs to address.

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We have engage the Home Affairs Head of Citizenship who responded a follows: 

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'Back office will have to determine the status of these clients before we can outline what is required. I suggest those reference book numbers be forwarded to me so that my team can check, if their reference numbers were converted to the current id numbers, and it is only thereafter we  will be able to advise on the next step and we can consider how we can improve the portal to accommodate these categories of clients. In the interim you may direct these queries to me'

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If you are impacted by not having the correct ID format please email us info@operationwatershed.com so we can liaise with the department to help you acquire the correct ID format and where applicable, ensure you are able to apply for reinstatement. 

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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.