Upon application to the Minister of Home Affairs, the Minister may under terms and conditions determined by him or her allow distinguished visitors or members of his/her family to be administered and sojourn in South Africa and or waive any prescribed (regulatory) requirements for good cause and/or grant any foreigner or category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist justifying such a decision.

Who has the power to exempt
S 31(2)(b) provides that the Minister may, upon application, grant a foreigner or a category of foreigners the right of permanent residence for a specified or unspecified period, when special circumstances exist justifying such a decision. The Minister may also exclude a foreigner or a group of ‘identified’ foreigners from such dispensation and may, for good cause, withdraw such right(s) from a foreigner or a category of foreigners. S 31(2)(c) provides that the Minister may for ‘good cause’ waive any prescribed requirement or form, in respect of any such application by a foreigner for the grant of permanent residence.

Does the Act allow for a waiver or exemption
There are a myriad of circumstances that may arise wherein an applicant may apply to the Minister of Home Affairs to grant certain concessions in terms of section 31(2)(b) or under 31(2)(c) under the Immigration Act (the “Act”) that may pertain either to the acquisition of permanent residence “when special circumstances exist” or “for good cause, waive any prescribed requirement or form”.

Who can waive and who has the power to do so
The Minister is empowered in terms of the Immigration Act to “waive” any regulatory requirement or form. A foreigner may apply for such waiver on the basis that “good cause” exists for the granting of such waiver.

So What is a “ good cause “
The term “good cause” has never been defined, either in terms of legislation or by the South African judiciary. In practical terms an applicant must demonstrate that there is compelling justification for the waiving of a regulatory requirement or form, and if the Department of Home Affairs (on behalf of the Minister) determines that a violation of a constitutional right, or an irrational consequence, will arise by a refusal to grant such waiver, waivers are normally granted.
A typical scenario necessitating a waiver under section 31(2)(c) would be where a specific requirement or form is applied to the Minister to be dispensed with.

Here are a few examples of waiver applications:
• A foreigner, sojourning in South Africa, has in the past submitted police clearance certificates from his country of residence of more than 12 months since his 18th One of those countries is Saudi Arabia. Since his last submission to the Department of Home Affairs of his Saudi Arabian police clearance certificate he has never returned to such country. He now intends to apply for permanent residence in South Africa and will, in terms of Immigration Regulation 23(2)(e) require a police clearance certificate from Saudi Arabia. Since he will not be able to acquire a new Saudi Arabian police clearance certificate without, at great expense and inconvenience, returning to that country physically to obtain one, he applies for a waiver from the aforementioned regulatory requirement in relation to a Nigerian ,USA or Saudi Arabia police clearance certificate if perhaps you have not lived there for 10 to 15 years and would have difficulty to obtain same . Such applications have been largely successful.
• A refugee sojourning in South Africa in terms of the Refugees Act wishes to apply for a critical skills work visa in terms of section 19(4) of the

Immigration Act. In terms of Ahmed and Others v Minister of Home Affairs and Another [2018], ZACC 39 an asylum seeker or refugee sojourning in South Africa must first apply for a waiver from the requirements of Immigration Regulation 9, which includes the requirement that any temporary residence visa applicant must submit his or her application in person to a foreign South African mission where such applicant ordinarily resides or holds citizenship. Once the waiver from such requirement is granted only then may the asylum seeker or refugee proceed to submit an application for a temporary residence visa application in South Africa. These waivers must ordinarily be granted otherwise a ruling by the Constitutional Court will be violated.
A regulatory waiver application made in South Africa may take anywhere between 4 – 7 months on average to be processed and adjudicated by the Department of Home Affairs. In order to apply for a waiver the applicant must be in possession of a valid refugee or immigration status.

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examines whether utilizing the services of a professional immigration agency offers advantages during the retired visa application process. Below is an in-depth analysis.

1. Understanding the Retired Visa Application Process

The retired visa application process requires compliance with South African immigration laws and regulations. The process includes:

• Completing detailed application forms.

• Compiling and submitting supporting documentation.

• Meeting financial and medical requirements.

• Dealing with South Africa's Department of Home Affairs (DHA), which can have variable processing times and strict requirements.

Even though applicants can apply on their own, the complexity of the process makes many consider professional assistance.

2. Role of an Immigration Agency

An immigration agency specializes in assisting clients with visa and residency applications. Their services often include:

1. Pre-Assessment: Assessing the applicant’s eligibility for the retired visa.

2. Document Preparation: Guiding applicants on the required documents and ensuring accuracy.

3. Compliance: Ensuring all submissions meet legal and regulatory requirements.

4. Submission and Follow-Up: Managing the application process with DHA or South African consulates abroad.

5. Problem Resolution: Handling potential complications, such as delays or rejected applications.

3. Benefits of Using an Immigration Agency

Here’s why it might be beneficial to use an immigration agency:

A. Expert Knowledge

• Immigration agencies are well-versed in South Africa’s Immigration Act and regulations.

• They stay updated on policy changes that could affect visa applications, such as changes to financial thresholds or documentation requirements.

B. Time Efficiency

• Agencies streamline the process by ensuring applications are complete and error-free, reducing the likelihood of delays or rejections.

• They manage communication with DHA, which can save the applicant significant time.

C. Navigating Bureaucracy

• Dealing with DHA or South African embassies can be challenging due to inefficiencies and backlogs. Agencies often have experience navigating these issues effectively.

D. Reducing Risk of Rejection

• Visa rejections are often due to incomplete documentation, errors, or failure to meet specific criteria. Agencies mitigate this risk by ensuring all requirements are met.

E. Personalized Guidance

• Agencies provide tailored advice, such as alternative options for meeting financial requirements (e.g., proving a lump sum vs. monthly income).

• They guide applicants on additional endorsements, such as the ability to work or study if applicable.

F. Support for Foreign Applicants

• Non-South African nationals may find the process particularly complex due to unfamiliarity with local laws, language barriers, or challenges in obtaining South African police clearances. Agencies provide critical support in these areas.

4. Potential Drawbacks

While there are significant advantages, there are some considerations to keep in mind:

A. Cost

• Immigration agency services come with additional fees on top of government visa fees. Applicants need to weigh this cost against the benefits provided.

B. Reliability of the Agency

• Not all agencies operate at the same level of professionalism. Choosing an unqualified or unethical agency can lead to complications.

C. DIY Alternative

• For applicants who are confident in navigating bureaucratic processes and have straightforward applications, hiring an agency may not be necessary.

5. Key Scenarios Where an Agency is Especially Beneficial

• Complex Financial Documentation: For retirees with diverse income sources (e.g., pensions, annuities, investments), agencies can ensure proper documentation and presentation.

• Past Visa Rejections: Applicants with prior rejections can benefit from professional guidance to address the underlying issues.

• Time Constraints: Applicants on tight timelines benefit from the efficiency and expertise of an agency.

• Language Barriers: Applicants who are not fluent in English may struggle to complete forms or communicate with DHA.

6. How to Choose a Reliable Immigration Agency

• Accreditation: Verify the agency is registered with professional bodies like the Forum of Immigration Practitioners of South Africa (FIPSA).

• Track Record: Research client reviews and testimonials.

• Transparency: Ensure they provide clear information about fees and services.

• Specialization: Choose an agency experienced specifically in retired visa applications.

7. DIY Application vs. Agency Assistance

Aspect DIY Application With Immigration Agency

Cost Lower (only government fees) Higher (agency fees added)

Time Investment High (self-managed) Lower (agency handles process)

Risk of Rejection Higher (errors or incomplete application) Lower (agency ensures compliance)

Knowledge Requirements High (research required) Low (agency provides expertise)

8. Conclusion

Hiring an immigration agency to assist with the retired visa application in South Africa can be highly beneficial, especially for applicants who:

• Are unfamiliar with South African immigration laws.

• Have complex financial situations or limited time.

• Face potential challenges, such as language barriers or past rejections.

The decision ultimately depends on the applicant's comfort with the process, financial capacity to pay for agency services, and willingness to handle the bureaucracy independently. For those seeking a smoother, more efficient process with reduced risks of rejection, engaging a professional immigration agency is a valuable investment.

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The short answer
The Constitutional Court ruled in October 2018 that a blanket ban on asylum seekers applying for temporary or permanent residence visas was not justified.

The whole question
I have been an asylum seeker for seven years. I read a GroundUp article that said asylum seekers can not be banned from applying for permanent residence. Can I apply for permanent residence? It would make my life a lot easier.

The long answer
Thank you for your email asking about applying for a residence visa as an asylum seeker of seven years.
It is true that the highest court in the land, the Constitutional Court, ruled in October 2018 that a blanket ban on asylum seekers applying for temporary or permanent residence visas was not justified.

The court said that while it was true that temporary residence permits had to be applied for outside the country, the applicant could apply for an exemption from that part of the Immigration Act, and this exemption could be granted as many asylum seekers could not return to their countries of origin without danger, and did not have valid passports. The court said that there was no reason that asylum seekers should not apply for residence visas, as the Immigration Act should not be in opposition to the Refugees Act.

VSF Global, the company that processes applications for Home Affairs, has issued a statement acknowledging the Constitutional Court's judgement. VSF says that it will immediately accept submissions at all their offices for exemptions from having to apply for temporary residence from outside the country. They say that a directive about permanent residence applications will be made soon.

So it looks as though nothing can prevent you from applying for an exemption at a VFS office

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Foreigners may purchase and own immovable property in South Africa without any restrictions, as foreigners are generally subject to the same laws as South African nationals. The only foreigners disqualified from owning property in South Africa are foreigners that are here illegally.

It is thus possible for a foreign individual to own property individually, jointly or in undivided shares. Foreign companies and trusts are also permitted to own property in South Africa, provided that they are registered in South Africa as an external company.

What is required as a foreigner purchasing property?
While purchasing property in South Africa as a foreigner has its advantages, it is important to bear the following considerations in mind, namely:

Visa requirements
Non-residents would need to comply with the Immigration Act 13 of 2002 if they intend to stay in their South African property for extended periods. The permit for which they apply would largely depend on their country of origin, the purpose of their visit and how long they intend on staying in South Africa.
Although there is a lengthy list of countries who do not need visas for visits of less than 90 days, foreign nationals from visa-restricted countries will have to apply for the relevant visa.

Capacity to enter into an agreement
Should the foreign purchaser not be in South Africa to sign transfer or bond documents, such purchaser will need to have the documents signed either at a Notary Public, who (depending on the country of signature) may have to have the documents Apostilled; alternatively the purchaser could also sign the necessary documents at a South African embassy.

Additional costs
Foreign nationals are, as is the case with South African residents, liable for any transfer duty, should the value of the property exceed R900,000. Properties purchased from developers, on the other hand, will generally attract Value Added Tax (VAT) as opposed to transfer duty and which VAT sum will be included in the purchase price.

They will also be liable for the ordinary costs of transfer which are payable by purchasers when purchasing property (kindly consult our tariff guide for an estimate on the property transfer costs).

It is very important to note that foreigners who purchase property in South Africa must register as South African tax payers for their Capital Gains Tax obligation. Should the foreigner wish to sell his property, a withholding tax of a certain percentage on the proceeds of the sale of a property of more than R2-million becomes payable until clearance is received from the South African Revenue Service from any amount to be paid to the seller or the seller’s agent. This can be avoided if the South African Revenue Service is approached prior to the transfer to obtain a tax directive and in which case only the directed amount (if any) will be withheld.

Financing
South African exchange control regulations determine the extent to which foreign buyers can borrow money locally to fund the purchase. Foreign buyers not working in South Africa will typically not be granted more than half of the purchase price to fund the purchase. The balance must then be paid in cash and this may be cash generated in South Africa, or off-shore funding.
Foreigners who have temporary work permits may be granted more than half of the purchase price, but the loan amount will still depend on the bank’s criteria. A condition of the loan would be that the buyer must reduce the bond to less than half of the registered amount before they leave South Africa to go back abroad. Some institutions would possibly require a work permit of at least four (4) years before they would consider a bond for more than half of the purchase price.
Consult with legal experts before purchasing property as a foreigner
When purchasing property as a foreigner, it is important to partner with a team of experts you can trust. Our Conveyancing and Property Law team are well experienced in assisting foreign nationals purchase property in South Africa, contact our knowledgeable team for more information.
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The Director-General of Home Affairs may withdraw an asylum seeker visa if the applicant is or becomes ineligible for asylum. Ineligibility includes the commission of a schedule 2 crime in South Africa, the re-availment of the asylum seeker to the protection of his or her country of origin or the participation in political activities in South Africa. The asylum seeker may make written representations within seven working days following the notification of the intention to withdraw. The Director-General must, after consideration of these representations, furnish the asylum seeker with a final decision regarding the withdrawal of the asylum seeker visa.

Travel Document
Recognized refugees are entitled to a South African travel document to allow to travel outside South Africa, except to their country of origin. In Anshur v Minister of Home Affairs [unreported], the North Gauteng High Court ordered the Department of Home Affairs to issue travel documents to the applicant pursuant to the Passport and Travel Documents Act, 4 of 1994. An application for a travel document must be accompanied by (1) a copy of the applicant’s certificate of recognition as a refugee, which must be valid for a period not less than 180 days at the time of submission of the application for a refugee travel document, (2) a copy of a valid identity card or document issued to the refugee, and (3) the biometrics of the refugee. An application for a refugee travel document by a person who is under the age of 16 years, must be made with the assistance of the applicant’s parents or legal guardian and must be accompanied by (1) where applicable, a copy of the birth certificate of such person, (2) a copy of the certificate of recognition of refugee status which was issued to that person, and (3) the biometrics of the refugee.

Marriage
In Ochogwu, the Supreme Court of Appeal ruled that the ineligibility of asylum seekers, whose status has not been determined, to marry, whilst lawfully residing in South Africa, was inconsistent with the law. This means they can marry .
If you find yourself in this situation let us assist you .
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