Can holders of expired ZEPs withdraw their provident funds and UIF?

Can holders of expired ZEPs withdraw their provident funds and UIF?

SA Migration | 06 Feb 2023

Can holders of expired ZEPs withdraw their provident funds and UIF?

The short answer

When the visa expires, the member can apply to withdraw their provident funds. Claiming UIF might be trickier, unless the courts find a solution.

The long answer

SARS issued a Tax Directive on 27 July 2022 regarding withdrawing provident or pension fund benefits if “emigrating” in terms of an expired visa (as such a benefit would be taxed):

Viz:

“In terms of paragraph (b)(x)(dd) of the definition of annuity fund in section 1(1) of the Act, a member who discontinues his/her contributions to a retirement annuity fund, and his/her emigration is recognised by SARB for the purposes of exchange control, can withdraw his/her retirement annuity fund benefit prior to his/her retirement or at the expiry of the visa that was issued in terms of paragraph (b) or (i) of the definition of ‘visa’ in section 1 of the Immigration Act, No 13 of 2002.

“WITHDRAWAL DUE TO EXPIRY OF VISA (LEAVING SOUTH AFRICA)

With effect from 1 March 2016 the definition of ‘retirement annuity fund’ was amended to allow a member who discontinues his/her contributions prior to his/her retirement date to be entitled to the payment of a lump sum benefit at the expiry of the visa that was issued in terms of paragraph (b) or (i) of the definition of ‘visa’ in section 1 of the Immigration Act, No 13 of 2002.

“The retirement annuity fund administrators, trustees or insurer must complete a manual Form C, preservation fund administrators or trustees must complete a manual Form B and attach the following supporting documents for submission to SARS: 

  • A copy of the Certificate of residence obtained from the relevant Tax Authority of the country in which the member resides or is employed;
  • A copy of the passport indicating an exit from South Africa;
  • A copy of the Visa indicating the expiry date and the applicable paragraph in the definition of ‘Visa’ in section 1 of the Immigration Act in terms of which the visa was issued or a ‘Visa / Permit Compliance and Cancellation of Visa’ letter from Home Affairs that is issued or obtained in terms of paragraph (c)(ii)(bb)(A) of the definition of ‘pension preservation fund’ / ‘provident preservation fund’ in section 1(1) of the Act will be treated the same as the expiry of a work visa. Please attach the copy to the directive application.

Only on the expiry of the visa can the member apply for the withdrawal. If the visa has not yet expired the application cannot be processed.”

In terms of UIF, as per the 18 December 2017 amendments to the Unemployment Insurance Act 2002, foreign nationals working on contract and their employers are obliged to make UIF contributions.

But Maruping, an official of the UIF, said in 2020: “What is true, however, is that payments to workers of foreign nationality have taken longer because of multi-layered processes that are used to capture their information.

“Generally, UIF uses the ID number to capture information and process payment. In this particular case, passport numbers are used and these have to be verified through interaction with sister institutions like the Department of Home Affairs, and at times with the South African Revenue Services.

“Clearly, with such processes involved, it is likely that there would be some delays but the Minister has instructed the UIF to ensure that these delays are minimised or shortened tremendously. It is also important that these workers are legally in the country, properly documented and are declared by their employers.”

The labourguide.co.za says: “If you have been contributing to the Fund for four years or more, then you can claim for up to 238 days. If you have been contributing for a shorter period, then you can claim 1 day for every 6 days that you worked while you were contributing to the Fund. If you take maternity leave, you can only claim up to 121 days. The Fund pays a percentage of the wage/salary that you earned while you were contributing to the fund. The highest amount that can be paid is 58% of what you earned per day.”

But what might be tricky for the ZEP holders is that to claim UIF unemployment benefits, you have to sign the unemployment register at a Labour Centre and be told when to come back and sign again, and you have to sign every four weeks to show you are still unemployed and needing UIF. You can’t claim UIF if you resigned, only if you were dismissed, retrenched or the contract expired. (I assume that with the ZEP holders, the expiry of the ZEP means the contract has expired.)

I am assuming that the three court cases being brought against Motsoaledi’s decision to end the ZEP by the Helen Suzman Foundation, the Zimbabwean Exemption Permit Holders Association (Zepha), and the Zimbabwe Immigration Federation, will still be taking place, even though the ZEP has been extended for a further six months. It may be that the courts will come to the rescue and shed some light on these matters. Let’s hope so.

www.samigration.co.za


Who inherits the house of a man who was married to but separated from one woman and in a long-term partnership with another?

Who inherits the house of a man who was married to but separated from one woman and in a long-term partnership with another?

06 Feb 2023 | SA Migration

The short answer 

It may be that your mother and children and the separated wife and her children are both entitled to inherit. 

The whole question

My mother, my siblings and I lived with my father in his house although he was married to another woman. There is a lobola letter for my mother. Can we change the title deed to my or my mother's name? 

The long answer

The Constitutional Court ruled in December 2021 in the Bwanya case that life partners must have the same rights as married people, and that Parliament must change the Intestate Succession Act and the Maintenance of Surviving Spouses Act within 18 months so that life partners are not discriminated against on the basis of not being married. In the meantime, these laws must be read to include life partners as spouses. 

The problem is that your late father did not divorce his wife, and so she would automatically have a claim to 50% of the joint estate, because a civil marriage in community of property means the surviving spouse inherits 50% of the joint estate set up by their marriage. A customary marriage is also automatically in community of property, unless the spouses take out an ante-nuptial contract before their marriage.

The Intestate Succession Act (which is the law that is applied when a person does not leave a will) says that the spouse or spouses inherit the greater of R250,000 per spouse or a child’s share, and the children the balance of the estate. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left issue, plus the number of surviving spouses.

So it may be that your mother and her children and the separated wife and her children are both entitled to inherit. If this is the case, it would probably mean that the house would have to be sold to pay both women and their children.

In terms of the Maintenance of Surviving Spouses Act, a surviving spouse (or life partner now) is entitled to claim against the deceased estate as follows: 

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings.”

In other words, maintenance is not automatic – it depends on the circumstances of the surviving spouse. As the other spouse has her own house, it may be unlikely that she would be able to successfully claim maintenance from the deceased estate.

And as your mother is living in your late father’s house with her children while the other spouse has her own house, the other spouse would not need her late husband’s house for accommodation.

But is this a situation of two spouses who have equal claims to the deceased estate, or does it make a difference that there was a separation? These are questions that you will need to put to the Master of the High Court, who supervises and administers deceased estates.

You and your mother should take your father’s death certificate, his ID and your own IDs and the children’s birth certificates and any documentation about the house, to the Master of the High Court and ask for assistance. 

www.samigration.com

How can I get legal permission to work in South Africa?

How can I get legal permission to work in South Africa?

SA Migration | 06 Feb 2023

The short answer 

Legal permission to work in South Africa is accessed by getting a visa. In you case it can be a relatives visa, spousal visa or life partner visa 

The whole question

How I, a Zimbabwean man, can get a visa to be able to stay in South Africa and care for my seven-month-old child and her mother, when my critical skills visa expires in March and I cannot renew it as the skills list was changed this year.

The long answer

There are three possible visas:

• Relatives visa;

• Spousal visa;

• Life partner visa.

The Relatives visa:

You can apply for a relative’s visa if you are first kin (i.e. a parent or a spouse) to a South African. This is a temporary visa, usually issued for about two years. It is like a long tourist visa. You are not allowed to work and your South African partner has to be your sponsor and prove that they can support you in an amount of at least R8,500 per month. Thus, it may not be appropriate for you, as you need to support your partner and baby. 

Apart from the application form, the following documents have to be submitted for the relatives’ visa:

• Your passport, which is required to have at least one blank page for the insertion of the permit/visa;

• A yellow fever vaccination certificate, if applicable;

• Payment of the application fee (not required where the applicant is a spouse or dependent child of a South African citizen/permanent resident);

• A statement and/or documentation showing the purpose and duration of your visit (temporary residence visa applications);

• Proof of the relative’s relationship, such as birth certificates, marriage certificates etc;

• Police clearance certificate from each country in which you resided for 12 months or longer since the age of 18 years;

• Medical and radiology reports;

• The ID book and/or passport that proves the South African relative is indeed a citizen or permanent residency holder; and

• Documentation that proves the availability of at least R8,500 per month per person for financial assurance (a waiver can be applied for spouses or dependent minor children of a South African citizen/permanent resident to waive the minimum financial requirements).

Sa Migration.com notes that “The spouses, life partners and children (minor or major) of South African citizens and permanent residents can submit their relative visa applications in South Africa from a visitor’s visa, following the issuance of Directive 7 of 2019, implemented in July 2019.

"Unfortunately, this does not extend to parents of South Africans. Parents and other eligible relatives must submit their visa applications at an embassy or consulate abroad.”

You can apply for a relative’s permit, which is a permanent residence permit where you are allowed to work, study, or set up a business, but it can take a long time for this to be issued (normally about two years) and in the meantime you would have to keep applying for the temporary relative’s visa.

The Spousal Visa:

You can apply for a temporary spousal visa if you are married to a South African citizen or permanent resident. The spousal visa is normally given for two to three years. You are not allowed to work on the temporary visa but you can get the visa endorsed to allow you to work or study or start a business. The documents you have to submit are the following:

• A marriage certificate;

• Proof of your South African spouse’s citizenship or residence;

• A letter of support from your South African spouse;

• Proof of good health and standing;

• A completed temporary residency application form.

If you have been married for more than five years, you can apply for a spousal permit which is a permanent residence permit. That means you can work or study or start a business. But even if you qualify for a spousal permit, it can take two years for Home Affairs to issue it, so it might be safer to apply for the temporary spousal visa first. 

The Life Partner Visa:

Intergate Immigration notes that with a spousal visa you can simply prove the relationship with a marriage certificate, but it’s harder to prove the relationship for a life partner visa. Home Affairs says that “such relationship must be intended to be permanent, exclude any other person and involve cohabitation, an obligation of mutual emotional support between the parties and a reciprocal obligation to support one another financially …” 

Besides proving that there is both an emotional and financial bond, you would also need to provide affidavits or letters of support from family and friends, attesting to your relationship.  

You would need to prove that you share financial responsibilities, like bond or rent, electricity payments, etc. You would need to open a joint bank account to show that you will not become a burden on the state.

You can apply for endorsements to the life partner visa for work and study once you have got the visa. You are advised to renew it at least 20 to 24 weeks before it expires because if the visa expires, you could be deported and banned from re-entering the country for five years. Home Affairs is ordinarily very slow and currently, it could take 20 weeks to process from the date of submission in South Africa.

You can apply from South Africa if you have a visitor’s visa (generally issued for 90 days). Presumably you can apply from South Africa on your critical skills visa, as long as that is valid.

These are the documents you would have to submit:

• Valid passport with at least two free pages and valid for 30 days after the end of your visit;

• Photocopy of any temporary residence visas in the passport;

• Proof of your relationship and that you have lived together for two years before submitting the visa application;

• A joint bank account;

• Proof of a minimum of R8,500 per month per person;

• Police clearance certificates from any country you’ve lived in for a year or more since the age of 18;

• Documentation proving cohabitation and the extent to which the related financial responsibilities are shared by the parties;

• Medical Certificate – not older than 6 months from date of issuance;

• Radiological Report – not older than 6 months from date of issuance.

Since VFS Facilitation Centres started managing the submission process of all visas and permits for Home Affairs in 2014, Home Affairs officials do not generally conduct interviews, so you may not be asked to undergo an interview to prove the validity of your relationship.

But if Home Affairs has any doubts about the relationship at any stage, they could still request an interview. 

After five years of the life partner visa, you can apply for permanent residence if the relationship is ongoing.

Intergate Immigration says that it can take up to three years for Home Affairs to process life partner visa applications for permanent residence. So it is advisable to apply for a temporary visa in the meantime.

It seems to me (from the outside, of course) that the simplest one to apply for would be the spousal visa, if you were married.

www.samigration.com

South Africa Visa for Indian Citizens

South Africa Visa for Indian Citizens

Apply for eVisa
Indians can now apply for a South African visa online. The South Africa eVisa for Indians went live in February 2022.
Thanks to the South African eVisa, it’s now easier to travel from India to South Africa. The application process is 100% online and travellers receive the approved visa by email.
On this page, tourists can find out about the South Africa eVisa requirements for Indians and how to apply.
Do Indian passport holders need a visa for South Africa?
Yes, Indian passport holders need a visa for South Africa. Only holders of diplomatic, official, and service passports from India can enter South Africa visa-free.
Indian tourists and other short-term visitors can now get a visa for South Africa online. The new electronic application system is the fastest and most convenient way to obtain a South African visa from India.
Indians who do not meet all eVisa requirements for South Africa must apply for the relevant South Africa visa through the embassy.
Can Indian citizens get an eVisa for South Africa?
Yes, Indian citizens can now get an eVisa for South Africa. South Africa’s electronic visa was launched for travellers from 14 countries in February 2022.
The South Africa eVisa is valid for short stays in South Africa, for tourism and other approved activities.
Indians still need to get a South Africa embassy visa if they wish to stay long term in the country, for example to work.
South Africa eVisa application for Indian citizens
The South African eVisa application provides a faster and more convenient solution for Indians visiting the country on holiday or for business.
Indian nationals will be able to apply for the South Africa visa in 3 steps:
1. Fill out the online South Africa eVisa form
2. Pay the eVisa fees and submit the application
3. Receive the South Africa visa by email
The electronic system replaces traditional embassy applications for many travellers.
Documents required to get a South Africa visa for Indian citizens
Indians need just a few documents to apply for a South Africa eVisa, including:
• Valid Indian passport
• Passport-style photo
Additional supporting documents may be required. Applicants also require a debit or credit card to pay the South Africa eVisa fees for Indians, and an email address.
Everything is uploaded digitally during the application process. Travellers do not need to present paperwork in person or attend an interview.
Apply for the South Africa online visa from India
The South Africa eVisa application form is quick and straightforward to complete. Indian citizens have to provide the following details:
• Full name
• Date of birth
• Country of citizenship
• Passport details
• Arrival date
To meet South African visa requirements, all the information must match the passport exactly. There may also be some health and security questions.
To finalise the request, Indians pay the eVisa fee online using a debit or credit card.
Travelling from India to South Africa with an eVisa
The approved visa will be sent by email in a few business days.
The traveller will need to save a copy of the eVisa on their phone/mobile device and take a printed copy with them when they travel.
The passenger will need to present the eVisa along with their passport at the South African airport. South African border officials verify the documents and have the right to approve or deny entry.
Indians also need return travel tickets and sufficient funds to cover the trip.
Additional entry requirements due to COVID-19
Some additional documents are required to enter South Africa from India during the coronavirus pandemic. Indians passengers entering South Africa need:
• Negative COVID-19 PCR test result from no more than 72 hours before departure
• Completed Traveller Health Questionnaire
The COVID-19 travel restrictions in South Africa are subject to change at short notice. Travellers from India must check the latest information before making plans.
Documents required if travelling to South Africa with children
These are the additional documents required if travelling from Indian to South Africa with children:
• Proof of guardianship/custody
• Written consent from non-accompanying parent/guardian when applicable
South Africa Embassy visa requirements for Indians
Indians who are not eligible for an eVisa must submit their application through a South African embassy or consulate.
Required documents depend on the type of South African visa requested. Applicants need to present their paperwork in person at a visa application centre or embassy.
South Africa’s eVisa system has simplified this process. Minimal documents are required and everything is submitted electronically.
South African Embassy in India
Indians no longer need to visit the embassy or consulate to obtain a South African visa. Instead, they can apply using their smartphone, laptop, or another electronic device.
Citizens of India who do not meet South Africa’s eVisa requirements should contact the embassy or consulate.
Consulate General of the Republic of South Africa
9th floor, Urmi Estate
95 Ganpatrao Kadam Marg
Lower Parel
Mumbai 400 013
India
South African High Commission
B -18, Vasant Marg,
Vasant Vihar,
New Delhi,
Delhi 110057,
India
FAQs about South Africa visa for Indians
No, Indians cannot enter South Africa without a visa, even for short stays. Indian citizens need to apply for a visa before travelling to South Africa, there is no visa on arrival service.
Indians are eligible for the new South African eVisa and can apply online in minutes.
The electronic visa is for Indians visiting South Africa for tourism and business trips. Other types of visas are available for other travel purposes.
Only diplomatic, official, and service passport holders from India are exempt from South African visa requirements.
It takes just a few business days to process a South African eVisa application from India. At times of high demand, it may take longer.
Indian citizens who require an embassy visa need to allow enough time to attend an appointment at the embassy or visa application centre. It’s important to begin the application process well ahead of departure.
No, Indians cannot get a visa on arrival in South Africa. Visas are not issued at South African ports of entry, airlines only allow Indian passengers to board a flight provided they hold a visa.
Indian citizens need to apply for their visa for South Africa in advance. Short-term visitors can now apply for a South African visa online using the new eVisa system.
The simple application form is quick to complete and travellers receive the approved visa by email.
How can we help you , please email us to info@samigration.com whatsapp message me on:
+27 82 373 8415, where are you now? check our website : www.samigration.com

Please rate us by clinking on this links :
Sa Migration Visas
https://g.page/SAMigration?gm

Alternatively , please contact us on :


Whatsapp Tel No : +27 (0) 82 373 8415 - ( Whatsapp messages only, No calls )

Tel No office : +27 (0) 82 373 8415 ( Whatsapp messages only, No calls )
Tel No landline CT : +27 (0) 21 879 5560
Tel No landline JHB : +27 (0) 12 880 1490
Tel No admin : +27 (0) 64 126 3073 ( Whatsapp calls only No Messages )

Tel No sales : +27 (0) 74 0366127 ( Whatsapp calls only No Messages )

Thousands of South Africans are losing their citizenship, some without even realizing it

Thousands of South Africans are losing their citizenship, some without even realising it

Many South Africans are being stripped of their South African citizenship when they voluntarily obtain citizenship in a second country.
Gary Moore, a Senior Researcher at the Free Market Foundation, said that thousands of South Africans are having their citizenship stripped, with many, if not most, not knowing.
Moore looked at a 2021 application made to the Pretoria High Court for an order to declare Section 6(1) of the Citizenship Act constitutionally invalid. Section 6(1) states that South Africans will automatically lose their citizenship if they voluntarily obtain citizenship of another country a continuation of apartheid law. However, the South African Constitution states that no citizen may be deprived of citizenship.
Moore said that Section 6(1) also denies certain fundamental rights to South Africans that are enshrined in the Constitution, including the right to vote, the right to reside in South Africa, the right to stand for public office, and the right to choose any occupation.
South Africans must apply to the Minister of Home Affairs for permission to retain their South African citizenship as per the Citizenship Act. The Minister may thus grant or deny permission at their own discretion. Moore said that the provision is a flagrant violation of South Africa’s Constitution.
The case
The applicant in the case said that many South Africans are unaware of the terms of Section 6(1) of the Act and do not know that they have to approach the Home Affairs Minister for permission to retain their citizenship.
However, Pretoria High Court Judge Jody Kollapen upheld Section 6(1).
Judge Kollapen referred to the Constitution’s founding provisions about citizenship, which state that South Africans are entitled to the rights and benefits of citizenship but are equally subjected to its duties and responsibilities, and the legislation provides for the acquisition, restoration and loss of citizenship.
Kollapen said that the fundamental right to not be “deprived” of citizenship in the Bill of Rights was aimed at preventing statelessness. He added that the Citizenship provision in the Constitution does not apply to South Africans applying for citizenship in another country, as they are not stateless.
Moreover, the judge said that Section 6(1) of the Citizenship Act did not amount to citizens being “deprived” of citizenship but rather a “loss”, which is a forfeiture and does not meet a justifiable requirement of the Bill of Rights.
Commentary
Moore said that the judge’s decision was superficial and flawed.
He noted that the judge’s interpretation of being deprived of citizenship was to prevent statelessness fails to address another section (8(2)), which authorises the Minister to deprive South Africans with citizenship in another country from their South African citizenship in the public’s interest or if the person has been sentenced to imprisonment for a year or more.
In addition, the applicants shared results from an online survey that showed many South Africans lost their citizenship due to being unaware of Section 6(1), many of whom did not intend to forego their South African citizenship.
However, Kollapen disagreed with this argument and said that South Africans looking to emigrate to other counties with the possibility of acquiring citizenship should familiarise themselves with the relevant laws.
Moore said that Kollapen’s argument failed to consider South African citizens seeking a second passport for easier travel and saw migration as the only possible reason to have a second passport.
Kollapen also relied on the notion of ignorantia juris neminem excusat (“ignorance of the law excuses no one”), but this principle is not generally applied. The courts say that persons cannot be assumed to renounce their legal rights unless they have specifically stated.
Kollapen not only dismissed the application but also dismissed an application for leave to appeal, despite the effect Section 6(1) has on thousands of people’s lives.
The Supreme Court of Appeal (SCA), however, granted leave to appeal, and the appeal is reportedly set to be heard in court on 23 February 2023.
Should the SCA set aside Kollapen’s decision and declare Section 6(1) constitutionally invalid, that order will have to be subsequently confirmed by the Constitutional Court.

www.samigration.com