October 7, 2021
Many South Africans who need to be aware of this risk will be overseas and/or may not have heard of the High Court decision we discuss below. If you know of any such person, please consider forwarding this to them as soon as possible.
A recent High Court judgment has confirmed that you will lose your South African citizenship if you apply for citizenship of any other country without prior Ministerial permission.
It is irrelevant whether you are South African by birth or not. It is also irrelevant why you want to acquire dual citizenship – perhaps you are living/working overseas, perhaps you want a second passport just to make travelling easier, perhaps you have financial reasons.
How and why you lose your South African citizenship
Dual citizenship itself is allowed, but our Citizenship Act provides that if “by some voluntary and formal act” you acquire citizenship or nationality of another country, you are deprived of your South African citizenship. And Home Affairs is interpreting that to mean that you have voluntarily given up your South African citizenship by your own “formal act” of applying for foreign citizenship.
You are exempt only if …
This loss of citizenship does not apply to –
- Minors (under 18 years of age) and
- Acquisition of another country’s citizenship by marriage.
How to retain your South African citizenship
The good news is that you can apply through Home Affairs for authority to retain your SA citizenship – but your application must be approved before you acquire your second citizenship.
The bad news is that it takes time, so don’t leave it to the last minute! Even before the pandemic, processing time was given as “3 to 6 months” and media reports suggest that delays are now much longer, although perhaps the publicity surrounding the High Court case in question will assist in improving the situation. If you are overseas, you should find the necessary forms and instructions on your local SA Embassy/Mission/Consulate website.
You’ve lost your citizenship – what now?
This is very much second prize, but you can still apply to get your citizenship back –
- If you were a citizen by birth or descent you can apply for reinstatement only if you have returned to, or are living in, South Africa permanently (you still have permanent residence, you just aren’t a citizen).
- If you were a citizen by naturalisation, you must re-apply for permanent residence or apply for exemption thereof, before you can be considered for resumption of citizenship.
- If all else fails, consider taking the legal route. As we discuss below, the High Court has recently held that the relevant provisions of the Citizenship Act pass Constitutional muster, but there is talk of a possible appeal.
High Court: Choose how important your citizenship is to you, and know the law
There has always been speculation that this section of the Citizenship Act could be held to be unconstitutional. However, in rejecting a recent application to that effect by the Democratic Alliance, the High Court has confirmed that it passes constitutional muster and is not “irrational”.
The High Court’s reasoning was that “It is ultimately a matter of personal choice what weight each of us attaches to the idea of our citizenship”, and that this is not a case of automatic loss of citizenship without notice but rather it “is really about personal and individual choices people make about their future and often choices come with consequences.”
The section in question, held the Court, is “not a secret provision but one that every citizen who voluntarily seeks to acquire another citizenship should ordinarily acquaint themselves with … while it may be arguable that citizens cannot be expected to know every feature of the law, those citizens involved in migration and relocation to other countries with the possibility of acquiring citizenship there must surely be expected to acquaint themselves with the law in that area of activity they are involved in.”
There is talk of an appeal but for now at least, if you have already lost your citizenship your options are limited to those set out above.
P.S. Never let your SA passport lapse!
Although you can travel freely around the world on your second passport, you must enter and depart from South Africa on your valid SA passport. Keep renewing it!
January 13, 2021
“If it sounds too good to be true, it probably is” (wise old adage)
2021 could well be a bumper year for Ponzi schemes (and their equally evil cousins, pyramid schemes). They flourish in all countries and at all times, but with our pandemic-related economic woes and general disruption we will no doubt provide the scamsters with particularly fertile ground this year.
And these schemes just never go away. As soon as one collapses or is shut down, it is immediately replaced by a new one – or more (like the Hydra’s heads, cut off one and two grow back).
Who is at risk?
Everyone! It’s not just pensioners and retrenched employees desperate to recoup their 2020 investment losses. Past schemes have counted some of South Africa’s wealthiest and most savvy citizens as victims, the problem being of course that the con artists who originate them are highly skilled at picking their targets and at creating cover stories to make everything seem legitimate. Perhaps most importantly, they are skilled at the social engineering side of it, building trust and credibility in their target markets with endorsements and “success” stories.
2020’s R9.45bn parting shot at us
There’s often big money involved too. Witness 2020’s parting shot at us in the form of the late-December provisional liquidation of Mirror Trading International (MTI), reportedly involving some R9.45bn worth of Bitcoin and some 280,000 investors from all over the world, lured by promised returns of up to 10% per month. At time of writing MTI apparently still denies that it runs a Ponzi scheme or indeed that anything is amiss, plus its website is still up, but a flood of media reports to the contrary no doubt have investors panicking and wondering whether they have just lost everything.
See also the recent press reports of the Asset Forfeiture Unit’s seizure of R106m worth of assets (11 chunks of land, 5 aircraft and a motor vehicle) linked to a suspected pyramid scheme.
During the lockdown, another alleged scheme took R42m in deposits from over 230,000 unsuspecting investors.
Stand by for more…and protect yourself and others by knowing the warning signs.
Red flags to watch for
See Sanlam’s Infographic below for a summary of how to spot a Ponzi scheme.
As the infographic suggests, let your watchword be: “If it sounds too good to be true, it probably is”.
Another possible indicator of a fraud is a promoter with no physical address – and if you are given a physical address, make sure it is real!If your proposed investment is presented as a being a part of a legitimate multi-level marketing (MLM) scheme, it may or may not be genuine – tread very carefully and read “Understanding pyramid schemes and multi-level marketing” here for some pointers.
Warn others (including your staff and the “early birds”)
Please think of passing on this warning, and if you are an employer alert all your staff. These criminals often target workplaces because of the trust factor between fellow employees and colleagues.
Tell everyone not to fall into the trap of thinking that they can be winners by “getting in early”. Statistically, 88% of “investors” lose everything. And, as a number of South African court cases have shown, even the 12% “early bird winners” must, if sued by a liquidator or trustee, cough up not only their “profits” but also their initial stakes.
That’s because a liquidator (“trustee” in the case of a person or a trust) can recover any monies paid out by a liquidated scheme during the 6-month period prior to liquidation, unless the recipient can prove that the disposition was made “in the ordinary course of business” and without intention to prefer one creditor above another. That’s likely to be impossible to prove with an illegal scheme. Even after 6 months the investor is still at risk, although the onus of proof then shifts to the liquidator.
In other words, even the “early birds” stand to lose everything.
So the bottom line is this – if you are approached by anyone with a “too good to be true” deal, don’t part with a cent until you are 100% sure it is legitimate!
December 17, 2020
It’s been a hard year but at long last the Summer Holidays are here! Here’s a selection of websites to help you enjoy your break –
Holiday safely in the time of COVID-19
Read Daily Maverick’s “How to go on holiday safely in the time of Covid-19: A practical guide” here for some thoughts on how to travel to your holiday destination, what to do on arrival, and how to have fun – all with minimal risk.
Dodging the dangers – an interactive graphic
Then from Spain (which knows a thing or two about this virus!) comes an interactive and somewhat alarming graphic showing how Covid-19 spreads through the air, how transmission works, and how you can avoid it.
See “A room, a bar and a classroom: how the coronavirus is spread through the air” on the El País website here.
And Now for Something Completely Different – “Tax Can Be Fun!” and Other Online Curiosities
“What a strange world we live in” said Alice to the Queen of Hearts (Lewis Carroll, Alice in Wonderland)
Finally, after such a surreal and challenging year let’s follow through with a few of the many strange webpages out there.
For a start here’s one that’s definitely worth a visit, and it comes courtesy of our very own SARS (not the virus 😀) on its “Tax Can Be Fun!” page.
“Curiouser and curiouser”, cried Alice
To end, a whole collection of strange webpages (warning: there is some really interesting, even useful, stuff here – but you are about to waste a lot of time prospecting for the gems!) on The Black Stump’s “Latest Bizarre, Oddball and Weird Sites” webpage.
September 21, 2020
Fraudulent SIM swaps were involved in around 13,300 reported digital banking fraud incidents across online and mobile banking and banking apps in 2019 (up 16% from 2018) and all indications are that the lockdown will see another spike in incidents.
Read “What to do if you are a victim of SIM-swap fraud” on My Broadband for advice on the dangers, how to protect yourself from becoming a victim, how to tell if you are under attack, and what to do about it if it happens.
Stay safe out there!
August 19, 2020
Breaking any of our lockdown laws can be an expensive business, risking heavy penalties.
If you are accused of a contravention and offered the option of paying an “admission of guilt” fine to avoid a court appearance, beware! It may seem like the easy way out to pay up and put the whole thing behind you but it could land you with a criminal record.
You really don’t want to have a criminal record!
Having a criminal record comes with serious and lifelong negative consequences. Even an old and long-forgotten minor offence can hang around in the background until it suddenly pops up at the worst possible times – such as when you apply for a travel visa or a new job.
When are you most at risk?
The general rule is that you will acquire a criminal record if you are arrested, if the police open a docket and take fingerprints, and if you are thereafter convicted of a crime.
The problem with admission of guilt fines is that they may well leave you with a “deemed” conviction and sentence which will end up in the CRC (SAPS Criminal Record Centre) database. Although there was talk in the past of the CRC capturing convictions with just your name and I.D. number the main risk seems to still be in having your fingerprints taken.
It’s not easy to get rid of a criminal record
And once you have a criminal record, it’s not easy to get rid of it.
- Firstly, you can apply for “expungement” of the record to remove it from the CRC database, but that option is only available to you after 10 years and for certain “minor offences”. It will also take a long time to process – “20 – 28 weeks” per SAPS. Note that some specified minor convictions fall away automatically after 10 years – ask for specific advice.
- Secondly, you could ask a court to set aside your conviction and sentence – costly, not quick and not guaranteed to succeed.
- Thirdly, you could hope that planned amendments to our criminal procedure laws will retrospectively come to your aid – speculative and not yet in the pipeline.
The bottom line – if you are offered the option of paying an admission of guilt fine, ask for advice before you accept!
June 30, 2020
“The secret of change is to focus all of your energy, not on fighting the old, but on building the new” (Socrates)
One wonders how many office-based businesses, having been forced to work remotely during the lockdown, will now abandon or minimise their office spaces on a permanent basis rather than return to the “old normal”.
Regardless, if you and your staff are currently working from home, you need to configure the arrangement for maximum productivity and quality of life.
Career Karma’s “A Complete Guide to Working from Home in 2020” on its website shares 10 tips on “How to Succeed as a Remote Worker”, offers a free PDF download “Remote Working: The Ultimate Guide”, and addresses 3 common myths about home working that both employers and employees should get to grips with.
April 17, 2020
“Never let a good crisis go to waste” (Winston Churchill)
The COVID-19 coronavirus crisis will, like all crises, eventually give way to economic and societal recovery.
Even before that inevitable upturn actually sets in, entrepreneurs should remember that times of great risk and challenge are also times of great opportunity. So get your team together now and brainstorm what new needs and new niches you can fill. Witness for example the “remote destination” businesses like game lodges now offering safe and luxurious havens for those wanting to self-isolate and to practice social distancing far from the city hotspots. That’s a win-win for everyone – businesses, their employees, their clients, and their suppliers.
And when a sustained recovery does make its welcome appearance, make sure that you are way ahead of the pack by using this current time of fear and negativity to maximise your planning. What will the recovery look like? How will you take advantage of it? What staff and resources will you need?
Get off to a good start with “Growth opportunities for small business in SONA and the Budget” on the Catalyst Magazine website which highlights some of the many opportunities still open to businesses big and small –
- The Infrastructure Fund
- The Tourism Equity Fund
- The African Continental Free Trade Area
- Incentive Programmes For Small Businesses
March 30, 2020
“Engage brain before hitting send” (Anon)
WhatsApp comes with a host of business and personal benefits, and its use is growing exponentially here as in the rest of the world. Which brings us to a possible downside – binding yourself to a legally-enforceable agreement without really meaning to.
First principles: Offer + Acceptance = Contract
What makes for a binding contract? In the most simplistic sense, all you need is for one person to make an offer and for another to accept that offer.
There are of course many other requirements – consensus ad idem (‘true agreement’ or ‘meeting of minds’), lawfulness, capacity to contract, compliance with any formalities, certainty of terms, possibility of performance and the like. Lawyers and legal academics love to wax lyrical on the finer ins-and-outs of these and of related concepts like “quasi-mutual assent” (more on that below, it’s actually an important concept), but the core principle applicable in the vast majority of cases remains this: Offer + Acceptance = Contract.
And of course, with only a few exceptions (such as property sales, wills and ante-nuptial contracts), even verbal agreements are fully binding, and the binding effect of electronic messages has been established both by legislation (most importantly the ECTA or Electronic Communications and Transactions Act) and by a series of modern court decisions.
A R20m lottery windfall and a R1m WhatsApp “offer”
- A father was paying R1,000 p.m. child maintenance to the mother of one of his seven children.
- Shortly after becoming the lucky recipient of a National Lottery windfall in the form of a prize of R20.8m, he met with the mother, told her that his health had deteriorated, that he could no longer be employed (by SARS) and that he would get about R600,000 in pension benefits.
- He offered R100,000 out of these pension benefits in full and final settlement of his child maintenance obligations, which the mother accepted and which was paid to her for the child’s benefit.
- At a meeting with the maintenance officer he denied having won R20m but the mother, after getting proof of his win, sent a WhatsApp message to the effect that she knew about it. He replied – also on WhatsApp – “if I get 20m I can give all my children 1m and remain with 13m.I will just stay at home and not driving up and down looking for tenders”.
- The mother sued the father for R900,000 on the basis that he had contracted to pay her R1m and had only paid R100,000. The father denied liability, saying that his WhatsApp message was just to “get rid of” the mother and that he had no intention to make an offer to contract.
When is an “offer” not an offer? The “intention to contract” factor
The mother won in the High Court but lost on appeal to the Supreme Court of Appeal (SCA), which held that the father wasn’t bound because on the facts his message was a denial of having won R20m and it “related what [he] could possibly do in the hypothetical future event of him receiving R20 million. It set out what the [he] might do if he received R20 million … the message clearly did not contain an offer that could on acceptance thereof be converted into an enforceable agreement.”
On the facts of this case, the father “subjectively had no intention to contract and the message did not suggest otherwise.” His “morally reprehensible conduct” lost him his claim for legal costs, but it did not affect his lack of intention to contract. So in this case our WhatsApping father is off the hook and gets to keep his R1m.
But… before you hit send
On slightly different facts his WhatsApp message could easily have been held to have been a valid offer, binding him on acceptance. For example, the concept of “quasi mutual consent” which we mentioned above, means that even if you don’t actually intend to make a binding offer, our law can hold you to it if your actions or conduct lead the other party “as a reasonable person” to believe that you did intend to enter into a contract. So you may not intend your message to be a real offer but if the recipient reasonably thinks it is, you are in trouble.
The lesson for us all is this – all users of electronic communications, whether via WhatsApp, Facebook, email or any of the many other electronic messaging channels open to us, face the very real danger of inadvertently making a promise in haste which down the line a court will hold us to.
Think before you message!
February 20, 2020
Traffic accidents, your fault or not, are traumatic affairs. Even minor dings come with their hassles – panel beaters, tow trucks, shock and recriminations, reams of paperwork, having to get a Crash Report Number for the insurers…
That last bit has always been a major added stress factor, requiring a trip to the local police station (unlikely to be a happy experience) and yet more paperwork.
No longer – life just got a little bit easier with the new online reporting service from NaTIS (the National Traffic Information System) on its website here. The submission of the report is legally binding and only applies to “minor damage crashes”, not in cases of injury or death. Note the time limit – “All crashes must be reported within 24 hours or the next working day. (Non-Working days Saturday, Sunday and Public Holidays).”
Get your lawyer’s help urgently if it’s anything but a minor accident!
January 15, 2020
“The email of the species is deadlier than the mail” (Stephen Fry)
Cyber-attacks in South Africa increased by 22% in 2019, and our exposure to serious online security breaches increases exponentially in line with our increasing use of email.
The fact is that we are all of us under attack by cybercriminals who become cleverer by the day at identifying our email vulnerabilities and at exploiting them. Defend your business with the tips in “Email in the age of cybercrime” on the LexisDigest website.
The whole article is a goldmine (particularly the “quick guide to email security” section) so share it now with your colleagues and your staff, and diarise monthly reminders!