I was admitted in 2013 as a permanent resident under “exceptional skills” and have been ordinarily resident in South Africa for more than five years, as required by section 5(1)(c) of the South African Citizenship Act of 1995 (as amended).
Despite complying with the legislation, my application for naturalisation was turned down last September because of the regulation requiring 10 years of ordinary residence, which the department of home affairs incorrectly interprets as 10 years as a permanent resident.
Legislation always trumps regulation, and the public protector recently gave the department three months to align its 10-year ordinary residence regulation to the five-year ordinary residence period stipulated in the Act. The matter will be heard in court in May.
Early naturalisation was to the Guptas under section 5(9)(a) of the Act, which states that “the minister may under exceptional circumstances grant a certificate of naturalisation as South African citizen who does not comply with the requirements … relating to residence or ordinary residence in the republic”.
In 2013, the department told Parliament’s portfolio committee on home affairs that section 5(9)(a) would cover people “with scarce skills seeking naturalisation” and the 10-year process could discourage them.
Former minister Hlengiwe Mkhize said the Guptas were granted early naturalisation because of their “business investments and social partnerships”.
I lodged an early naturalisation motivation in 2017. Given the legal contention about the ordinary residence period, I included a letter asking the minister waive the ordinary residence requirement for me, letters of support from executives of some of the country’s most reputable corporates, magazine articles about my company’s impact on the growth of the small, medium and micro-enterprises sector, testimonials from several of the hundreds of small business owners I have taken on sector-specific global exposure trips, and a letter from the South African Revenue Service attesting to my company’s good standing.
The current regulation requiring 10 years as an ordinary resident is extremely onerous and not in line with international best practice. Highly skilled businesspeople who have the flexibility to live anywhere in the world are discouraged from moving to South Africa.
As I learned, the section 5(9)(a) process entails an official at the citizenship section preparing a submission with supporting documentation, which is then sent, one by one, for signature to various senior officials and legal services. If one of those officials is not satisfied, they may send it back to the citizenship section for amendments. The submission is then sent out again, one by one, to the same officials, restarting the “round-robin” signature process. Finally, the submission goes to the minister. As one can imagine, it takes a long time.
I take issue with how the department adjudicated the Guptas’ appeal.
In June last year, the Sunday Times published extracts from e-mails between an official at the citizenship section and Sahara Computers chief executive officer, Ashu Chawla, showing how fast the Guptas got their papers. On April 15 2015, the official asked Chawla for supporting documents for the Guptas’ appeal for early naturalisation to complete the submission. On May 30 2015, Malusi Gigaba signed an official letter granting the family early naturalisation. This means the department adjudicated the Guptas’ appeal for early naturalisation, including the painful round-robin approval process, in just over a month.
Applicants like me without political clout have been waiting five times as long (and counting) for the same type of appeal to be adjudicated by the same officials.
On March 6, Gigaba told the media that “the Gupta family was not favoured. The application and appeal was not expedited”.
If indeed their appeal was not expedited, Gigaba has set the standard — that all such appeals should be adjudicated in just over one month. I implore Parliament’s portfolio committee on home affairs to monitor closely how quickly and fairly other early naturalisation requests are adjudicated in the upcoming weeks.
I am confident Gigaba will demonstrate that the section 5(9)(a) process is indeed meritocratic, and that under his stewardship, senior officials will promptly adjudicate appeals that, under the previous two ministers, languished for too long.
Dan Brotman is an American-born Israeli entrepreneur based in Cape Town. He awaits the outcome of his Section 5(9)(a) appeal