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

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):

“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.

What came out of meeting between Ramaphosa, Lesotho prime minister

What came out of meeting between Ramaphosa, Lesotho prime minister

News24 | 07 Feb 2023

South Africa and Lesotho will convene an inaugural Bi-National Commission (BNC) this year as the two countries work on strengthening ties, while the latter is seeking an extension of the Lesotho Special Permit (LSP) that expires at the end of the year.

This came out of the meeting between President Cyril Ramaphosa and Lesotho Prime Minister Sam Matekane in Pretoria on Saturday.

This was their first meeting since Matekane came into office in October last year.

In 2021, the two countries signed a framework of cooperation and now they want to upgrade it into a fully-fledged BNC.

The top priority, the leaders said, was the "free movement of people, goods, and services between the two countries, particularly taking into consideration the unique geographic position of the Kingdom of Lesotho".

"They further discussed easing of requirements for study and work permits for Basotho and extension of the Lesotho Special Permit (LSP) when it comes to an end in 2023," the Lesotho government said.

Lesotho accused South Africa of breaching their "free movement" arrangement when authorities instructed 400 Basotho to leave Newcastle in KwaZulu-Natal in November last year.

That set the stage for the first meeting between Ramaphosa and Matekane due in November last year, but it was cancelled at the last minute as Ramaphosa had an urgent ANC internal matter to attend to.

In December last year, Tsepo Lipholo, the leader of the Lesotho Covenant Movement (LCM), appealed to parliament to discuss a proposed motion on the reclamation of some parts of South Africa.

Historically, the Basotho were found in the Orange Free State, Eastern Cape, Northern Cape, Mpumalanga, and parts of KwaZulu-Natal.

Cross border crime

There have been numerous cases of illegal miners, zama zamas, identified as Basotho. From the meeting between the two leaders, it was agreed that they should join forces in dealing with cross-border crimes and illegal mining.

"Mr Matekane and Mr Ramaphosa further agreed to work together in uprooting the cross-border crime committed by nationals of both countries, the illegal mining menace that has ravaged South Africa and therefore resulting in massive losses of lives of the citizens of both countries," the Lesotho government said in a statement.

Responding to questions from journalists, Lesotho prime minister’s press attache Thapelo Mabote said while there were reported cases of assault of Basotho in South Africa, it was not easy to conclude if they were victims of mob justice or xenophobia.

Restoration of democracy

Ramaphosa commended the Basotho for holding free and fair elections, which are the cornerstone of democracy. 

As SADC's delegated facilitator in the Lesotho roadmap, he wished to see the fulfilment of the regional bloc's recommendations.

"The successes recorded thus far towards the conclusion of the national reforms process are encouraging. I believe that, as per the prime minister’s undertaking, the new government will expedite its efforts and complete all outstanding matters to finalise the reform process and pass the outstanding Constitutional Amendment Bill,” said Ramaphosa.

The Lesotho Constitutional Amendment Bill seeks to amend key provisions regarding political parties, floor-crossing in parliament, the appointment of senior officials, and the role of the prime minister.

The leaders also spoke about Lesotho and South Africa working together in the renewable energy sector.

This is particularly because of Lesotho's enormous potential in this area, which is made possible by the country's abundance of water, sunlight, and high mountains, which are strategically located to allow for the efficient use of wind energy.

There are four projects in Lesotho that have advanced past the feasibility study stage and can provide a significant amount of electricity utilising wind.

www.samigration.com


What should I do if my passport is on the V-list?

What should I do if my passport is on the V-list?

SA Migration | 06 Feb 2023

The short answer

You can contact Home Affairs to appeal your status as a "prohibited person".

The long answer

To be on the V-list means that you are a “prohibited person”, which means that you are banned from entering South Africa. A prohibited person is different from an “undesirable person” as the undesirable person is often a person who has overstayed their visa, and they can usually enter South Africa again after one to five years. 

Section 29 of the Immigration Act 13 (2002) sets out the grounds for someone to be declared a prohibited person, but usually you get put on the V-list for two things:  

  1. Being found with a fraudulent visa, permit, passport or identity document;
  2. Having been previously deported from South Africa.

If you are applying for asylum, they may reject it on the grounds of it being “manifestly unfounded”, which usually means that the Department of Home Affairs (DHA) thinks that you are not fleeing persecution but have come to find work. Whatever the reasons are, DHA must give you written reasons within five days of the rejection, not just stamp your passport with "V-list”.

The Norton Rose Fulbright Handbook on Refugee Law explains that this is because asylum seekers are granted the same Constitutional rights in terms of the Bill of Rights, except for the rights which are specifically granted only to citizens. One of these Constitutional rights is administrative justice (Section 33 of the Constitution). This means that any administrative action of an organ of state when exercising its public power or performing a public function must be lawful, reasonable and procedurally fair.

Le Roux Attorneys note that: “In practice, offending individuals are often told by the Department of Home Affairs (‘DHA’) that they have been placed on the ‘V-list’ or ‘No Entry List’ and no proper declaration of their prohibited status is ever communicated to them.”

Not to give you written reasons for making you a prohibited immigrant, as signified by the V in your passport, is not procedurally fair, and this should be mentioned in your appeal. The only way you can overturn the V decision by DHA is to appeal to the Director-General (DG) of DHA to overturn the decision if there is good cause. The DG has to take into account the reasons for making you a prohibited person, the seriousness of the offence and your personal circumstances. 

You would have to appeal in writing, giving the reasons why you think the DHA V listing was wrong.

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What happens to ZEP holders' bank loans if they are forced to leave SA?

What happens to ZEP holders' bank loans if they are forced to leave SA?

SA Migration | 06 Feb 2023 

The short answer

Usually a person's debts remain active if they leave the country, but it is unclear what will happen if they are forced to leave, as with ZEP holders.

The long answer

It’s a murky, sorry business. Seemingly the banks are mostly not willing to say outright that ZEP holders’ accounts will definitely be frozen, though several, including FNB, which is apparently the only bank that has been willing to open accounts for asylum seekers and refugees, has “warned” that ZEP holders must apply timeously for other visas in order to keep their accounts open. Some banks have refused to renew ZEP holders’ bank cards.

A skilled ZEP holder who works in IT but has no degree, and thus does not qualify for a critical skills visa, and who also does not have R5-million to invest in a business, wrote in an article for the Mail & Guardian on 2 June 2022, “… as of 31 December, bonds, car loans and even medical aid, life policies and more will be lost as bank accounts are frozen, making it impossible to transact.”

Myggsa.co.za says that a frozen account cannot be opened by creditors, so no money can be withdrawn from it. It goes on to say that if your bank account is frozen in South Africa, you have the right to request a written explanation from your bank within 5 days. You also have the right to have the freeze lifted within 10 days unless your bank has good reason to believe that you have committed a crime.

No bank seems willing to actually answer the question upfront of whether Zimbabweans are obliged to pay back loans they took in South Africa if they are forced to leave the country. The banks talk only of loans made in the ordinary way, for example, Nedbank says, “When you take out a loan and sign a credit agreement, you enter into a legal contract. You agree to pay back the amount you have borrowed, as well as the specified interest and costs, within the period of time required. When you don’t pay, you are in breach of contract.”

Generally, a person’s debts remain active even if they have left the country and creditors can try to recoup the debt. (It seems that no one wants to say what the situation is if they were forced to leave, as in the case of the ZEP holders.)

 www.samigration.com

 


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