South Africa is the destination of choice for many people from the continent and the world. As a result of this the country’s ports receive millions of travellers annually entering for various reasons. However, on occasion a traveller is refused entry having been deemed ineligible for entry into the Republic for one or more reasons. Often persons who find themselves in this position are summarily sent back to their country of embarkation without being informed of their rights if any under our law and how to exercise these rights. In this week’s piece we will explore what the Immigration Act provides for persons in this position as well as what our courts have concluded in cases involving persons who have been refused entry.
Section 8(1) of the Immigration Act regulates what happens to a person who has been refused entry at a port of entry. Section 8(1) provides “An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review that decision and-
1. a) If he or she arrived by means of a conveyance which is on point of departing and is not call at any other port of entry in the Republic, that request shall without delay be submitted to the minister; or
2. b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the minister within three days after that decision.
Two key rights are expressed in this section, the first one is the right to be notified of the reasons for being denied entry and secondly the right to make an appeal to the Minister to review the decision. The Act also makes provision for a time frame of when the appeal should be made in these two instances when entry has been refused. The first arises when the conveyance is set to depart and will not call upon another port of entry in which case that appeal must be made immediately. The second instance is when conveyance is not at the point of departing, in which case the appeal must be made within three days from the act of being refused entry.
In section 8(2) the Immigration Act goes on to provide that if any person is refused entry or found to be an illegal foreigner as contemplated above, who has requested a review of such decision but is on a conveyance that is set to depart as contemplated in section 8(1)(a) shall depart on that conveyance and shall await the outcome of the review outside the republic. In a case arising under section 8(1)(b) , where the conveyance is not at the point of departure and the person has lodged an appeal with Minster the Act provides that this person Shall not be removed from the republic before the Minister has confirmed the relevant decision. Here is where the problems tend to begin, firstly most are not informed of their rights as required by the Act but where they are informed there seems to be a concerted effort by the Immigration officials to secure the immediate removal of the person notwithstanding the protections afforded to the person.
The right to review and to reasons are hallmarks of our administrative law and are enshrined in the section 33 of the Constitution which vests everyone who is at the receiving end of an adverse decision by the state the right to appeal that decision and the demands that the public official must provide reasons of their decision in writing. Our law recognises that the right to Just administrative action has two key aspects, the first one being the substantive aspect encapsulated in the statement the administrative action must be lawful or put differently it must be in line with an empowering legislation and the constitution. The second relates to the procedural fairness, the conduct or act must conform to procedural prescripts of the Act. Meaning where the Act says the official must inform the person by issuing a form 1, the failure to issue that form renders the action unlawful.
In the past when Home Affairs has been challenged on actions its officials have taken to deny a person entry they have put forward two principal arguments, first that have stated that once they have denied some one entry that person is no longer their responsibility but that of the conveyance as contemplated in section 35(10) of the Immigration Act. The have also argued that technically persons in the arrivals area at the port of entry who have not been formally admitted into the republic are not in the republic and therefore not subject to the protections afforded to them by the Act and the constitution. A final argument has been that in cases where a person has lodged an appeal in terms section 8(2)(b) wherein the Act provides that person shall not be removed from the republic, that person is not deprived if freedom as contemplated in section 12 of the constitution while also arguing they cannot be allowed to await the Ministers decision in the republic as doing so would be detrimental to their immigration enforcement efforts.
All these arguments have been dismissed out of hand by the courts. In Lawyers for Human rights & another// the Minster of t Home Affairs & another 2004 (4) SA 125 (CC) the Constitutional court held that “The denial of these rights to human beings who are physically inside the country at sea or airports merely because they have not entered South Africa formally would constitute a section of the values underlying our constitution”
In other Judgments in the SCA and High court this argument was dismissed as pure sophistry which ought to be disregarded offhand and that our courts would have jurisdiction to intervene in these matters in the same manner as they would be expected to intervene in a case involving the murder of a person at a port or entry. In Abdi V the Minister of Home Affairs (734/10) 2011 ZASCA 2, the Supreme court of Appeal found that Home Affairs remained the responsible authority when a person has been refused entry and they do not at any point abdicate that responsibility to the conveyance
As to whether a court can order the release of an inadmissible foreigner from an inadmissible faculty pending the outcome of a review of the decision the courts appear divided with judgements for and against the release. In Chen v the Director General of Home Affairs 2014 ZAWCHC 181, the court having assessed the conditions of the holding facilities at the airport concluded that these holding facilities were in fact detention facilities that had the effect of violating a person’s fundamental right to dignity and the right to freedom and security of person and her right to freedom of movement. The court went on to order the release of the person pending the minister’s decision but left it to the DHA to determine the conditions of the persons release.
As a final note for the airline industry who often find themselves caught between a rock and a hard place in these situations. It is worth noting the judgment of the High Court in Lin & Another v the Minster of Home Affairs & others. The court made several adverse findings against the airline in that case including punitive orders for contempt of court against certain employees of the airline. The airline had argued that their function was to merely carry out the orders of the Home Affairs in this case however the court found them wanting and essentially stating that where the airline has been advised of the persons rights it has a duty to ensure that they do not participate in the violation of that persons rights by observing the letter of the law and not blindly follow the instruction of DHA which often have been found to be unlawful.
www.samigration.com

How can we help you?
Please email us to info@samigration.com
Whatsapp message us 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


Get More Info By Following Our Page: https://www.youtube.com/@samigration

HARARE- Zimbabwe has launched a new online visa application system aimed at streamlining immigration procedures and enhancing the country’s appeal to international visitors and investors. The platform, which is part of the broader Online Border Management System (OBMS), allows travellers from visa-required countries to apply for entry electronically—marking a significant shift from the previous paper-based system.

The OBMS, first rolled out in 2024, now includes e-visas, e-permits, and digital travel clearances. These developments form part of the government’s wider digital transformation drive to modernise public services, improve administrative efficiency, and strengthen border security.

Chief Immigration Officer Respect Gono said the new system will make the application process faster, more convenient, and less costly.
“Previously, applicants had to physically visit embassies or consular offices, or send documents by post. Now they can apply from anywhere, at any time,” she told state media. “The major highlights of the OBMS are the e-visas, e-gates, and e-permits.”

The e-visa facility is now fully operational, and citizens of countries requiring prior approval to enter Zimbabwe can access the service via the official immigration website. The platform also allows applicants to track the progress of their applications in real time.

In addition to short-term tourist and business visas, Zimbabwe has expanded the system to support applications for long-term stays. These include residence permits, employment permits, and investment-related authorisations. Gono confirmed that several modules, such as those for temporary employment and investor residence, are already functioning, while others are under development.

The digitisation of immigration services is expected to bring wide-ranging benefits—not only for applicants, but also for government agencies and private sector stakeholders.

“By cutting down processing times and reducing paperwork, the OBMS improves efficiency across the board. It also enhances transparency and allows for better monitoring of border traffic,” Gono added.
Tourism operators and business leaders have welcomed the new system, describing it as a timely and necessary reform that positions Zimbabwe as a more accessible and modern destination.

“We are confident this will have a positive impact on tourism and foreign investment,” said one stakeholder. “Making it easier to visit or invest in Zimbabwe is a crucial step toward boosting economic growth.”
The Zimbabwean government has stated its commitment to continuing the rollout of digital services across sectors, with immigration viewed as a key priority for both national security and economic development.

Sometimes things don’t work out as we planned and often the foreign employee does not feel happy at his employer or maybe they just not suited for the company. Many times they often resign to join a new company or move back to their country of residence.

In times like this, we are often completely clueless about what we need to do once the employee has left the business.
Today, we discuss the steps you need to take when an employee has left the business.

How to cancel a work visa in South Africa?
• How to cancel a work visa in South Africa?
• Why should you inform the Department of Home Affairs once the employee has left?
• Can an employee work for another company with the same work visa?
• What is the correct procedure to follow when an employee joins a new business?
• How can I notify DHA if they are working at the new company illegally?
• The ex-employee has permanent residence status and work for the new business?
• Making use of an immigration practitioner?

The following documentation must be emailed to the Department of Home Affairs:
• Certified copy of the first page of the foreigner’s passport
• Certified copy of the temporary residence visa in the foreigner’s passport indicating the purpose for which the visa was issued
• Letter from the foreigner’s employer/learning institution that the foreigner has left their employment/learning institution
• South African Foreign Offices – to refund repatriation deposits – a copy of the departure stamp in the foreigner’s passport confirming the departure of the person

The documentation must be emailed to the following email address:
• visacompliance@dha.gov.za
NB!! remember that documents should be smaller than 4 megabytes or the email server at the Department of Home Affairs will reject them. A potential workaround is emailing all the documents separately.
Everything is done online and no need to visit an actual DHA office, so this eliminates the need to stand in a queue. The application process is quick via email.

An important aspect to remember is that you need to send all other proof of documents to any accompanying dependents tied to the employee’s visa like a spouse or children. The same documents must be sent to DHA.
It is important to remember that a dependent spouse may not work in South Africa. If you need more information you can read our blog post called Accompanying spouse work visa South Africa can give you the information you need.

Why should you inform the Department of Home Affairs once the employee has left?
When an applicant applies for one of the following temporary residence visa / visas:
1. Critical Skills Visa
2. Corporate Workers Visa
3. Intra Company Transfer Visa
4. General Work Visa

If you are thinking of applying for a work visa, contact us and ask “How much does a work visa cost in South Africa”
The employer submits four undertaking letters taking on the responsibility for the following:
• A written undertaking by the employer accepting responsibility for the costs related to the deportation of the applicant and his or her dependent family members, should it become necessary.
• A written undertaking by the employer to ensure that the passport of his or her employee is valid at all times for the duration of his or her employment.
• An undertaking by the employer to inform the Director-General; should the applicant not comply with the provisions of the Act, or conditions of the visa.
• An undertaking by the employer to inform the Director-General upon the employee no longer being in the employ of such employer or when he or she is employed in a different capacity or role.

So means that the employer must notify the Department of Home Affairs when the employee is in contravention of the abovementioned. Failing to notify DHA could lead to consequences for the company in question.

Can an employee work for another company with the same work visa?
No, the employee is not allowed to work for another company with the same work visa. The Department of Home Affairs endorses the employer’s company name on the visa. It is illegal to work for another company and the new employer will be fined or face imprisonment for doing so.
If you need more information about the consequences of working without a work visa in South Africa. An employee might have a fake work visa and it is important for the new employee how to spot a fake work visa in South Africa.

What is the correct procedure to follow when an employee joins a new business?
• Firstly the ex-employer must notify the Department of Home Affairs that the employee is no longer employed by them.
• The foreign national might have to leave the country and reapply for a new work visa depending on whether their visa is still valid.
• The employee together with the new employer must compile an application for a new work visa and apply through VFS or submit it at the nearest SA embassy or consulate in the country of residence.
• Once they have successfully received their work visa, then only may they work for the company.

How can I notify DHA if they are working at the new company illegally?
If you have proof that your ex-employee is currently working for the new company illegally then you can inform DHA that they are currently working for them:You can email or call the inspectorate of Home Affairs:
DHA is currently cracking down on illegal businesses that are employing illegal foreigners.
The ex-employee has permanent residence status and work for the new business?
Unfortunately, in this instance, there is nothing that you could do to the employee. When an application for permanent residency has been successful, the employee is allowed to work for any business in South Africa.

Permanent residence does not tie an employee to an employer and therefore they have the freedom to work for any South African employer as they wish.

Making use of an immigration practitioner?
Making use of the services of an immigration practitioner can be useful to your business. In an instance like this, your immigration practitioner can prepare the application to notify the Department of Home Affairs that the applicant is no longer in your employ.

How can we help you , please email us to info@samigration.com or whatsapp message me on: +27 82 373 8415, where are you now? check our website : www.samigration.com

South Africa encourages permanent residency if you are serious about staying in South Africa on a long terms permanent basis there are many categories you can apply under.

Hold a General Work Visa for five years and have a permanent job offer.
Hold a Relative’s Visa sponsored by an immediate family member.
Hold a Critical Skills Visa and have 5 years relevant work experience.
Be in a proven life relationship relationship for five years
Be married to an SA relationship for at least five years.
Have held Refugee Asylum Status for five years.
Hold a Business Visa.
Receive a monthly income of R37,000 through Pension or Retirement Annuity
Have a net asset worth of R12m and payment to Home Affairs of R120,000
www.samigration.com

How can we help you?
Please email us to info@samigration.com
Whatsapp message us 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


Get More Info By Following Our Page: https://www.youtube.com/@samigration

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.

How can we help you , please email us to info@samigration.com or whatsapp message me on: +27 82 373 8415, where are you now? check our website : www.samigration.com