Inspection at workplaces set to increase
Newly appointed home affairs minister Leon Schreiber will increase inspections at restaurants, spaza shops, farms and mines to heighten the crackdown on undocumented workers in these industries.
Schreiber said while SA welcomes those who contribute to the country legally through skills, investments and as tourists, it needed to do more to combat illegal immigration.
"We must do so both because it is central to our national security but also out of our commitment to economic growth. The reality is that no one will want to visit or invest if we allow our country to lose control over its borders and internal security," he said during his budget speech vote yesterday.
He said he plans to increase the number of inspections by 50% in the coming year. He said the inspections would be effective when done in collaboration with other departments.
"I will be reaching out to colleagues in the relevant departments to conduct joint operations, to maximise our ability to hold everyone involved in illegal activities to account," he said.
The news comes more than two months after a building collapsed in George, Western Cape. The majority of those who died at the construction site were foreign workers, some of whom were undocumented and paid below the legal minimum wage. Some were reportedly earning R85 to R150 a day.
"We have mixed emotions about what is currently happening. Obviously, the government of the day is in the process of trying to prove themselves that it is doing something. But we welcome that move. The complete eradication of undocumented foreign nationals from our economy, from our spaza shops would begin to mitigate a lot of things. We welcome any initiative to boost the economy,"
Bayanda Radebe from the Ratanda Spaza Shop Forum in Gauteng said they welcomed Schreiber's move to rid the country of undocumented migrant workers.
"We have mixed emotions about what is currently happening. Obviously, the government of the day is in the process of trying to prove themselves that it is doing something. But we welcome that move. The complete eradication of undocumented foreign nationals from our economy, from our spaza shops would begin to mitigate a lot of things. We welcome any initiative to boost the economy," he said.
Sowetan previously reported that some of the business people who were part of the forum allocated dozens of shops to themselves and other community members after previous owners who are foreigners were driven out of the community due to tensions last year.
NUM spokesperson Livhuwani Mammburu said illegal miners had caused chaos in the mining industry.
"The NUM does not support undocumented foreigners and we have legal immigrants who are our members. We support the minister of home affairs in dealing with illegal immigrants in the mines because that causes instability. Most of the illegal immigrants work as illegal miners," he said.
Aggrey Mahanjana, an executive member at African Farmers’ Association of SA, said the eradication of undocumented migrants should be extended across the board.
"We cannot allow our country to be a free-for-all, for people to just come and get jobs but also us as farmers we need to toe the line in terms of ensuring that whoever we employ is a properly documented person. Also, people get fake documents from home affairs which has been infested by corruption," he said.
Grace Harding, chairperson of The Restaurant Collective, said the inspections should be done in a respectable manner that does not scare patrons away.
"We have had instances in the recent past which has traumatised international tourists, since the police accompanying home affairs officials were carrying rifles and the patrons thought their lives might be in danger with the aggressive way the whole operation was conducted.  The same results could have been achieved with a courteous approach, which would not have seen the patrons flee in fear," said Harding.
Schreiber also received some criticism recently after he decided to extend the temporary concession for foreign nationals who are currently awaiting the outcome of visa, waiver and appeal applications.
He said the extension safeguards applicants,  including those who are contributing to SA's economy through their scarce skills, from suffering adverse consequences or being erroneously declared undesirable while they await the outcome of applications submitted to the department.
Yesterday, the minister said it was crucial for the country to retain skilled foreign labours in order to boost the country's economy.
"The National Treasury has also found that increasing the availability of scarce skills in the labour market is the second most powerful step we can take to grow the economy and create jobs for South Africans," said Schreiber.
Among other interventions in his department were the issuing of 280 smart ID to naturalised citizens with 697 in the process of being issued.  The Border Management Authority (BMA) has also absorbed 400 junior border guards to man the major borders: Breitbridge, Lebombo, Kosi Bay, Maseru and Ficksburg.
"Their primary tasks include addressing the scourge of illegal entry, the smuggling of illicit cigarettes, stolen high-value vehicles and stock theft."
He said to date, BMA guards have intercepted and deported over 296,000 individuals who had attempted to enter the country illegally. In addition, over 303 vehicles were intercepted when criminals attempted to illegally take them out of the country

The short answer

You can get an endorsement on your spousal visa. Here's how.

The whole question

I left everything behind to live with my husband in South Africa. However, while staying here I've been unable to open a bank account because my visa states that it is a 'Visitor's Visa'. As a woman, I cannot stay idle and wait for my husband's salary. I need to work and save some of the money I earn and receive from my husband, but it's nearly impossible since I can't open a bank account. I'm still going to be staying here for the next 3 years. Is it possible for spousal visas to not to be labelled as 'Visitor's Visas'?

The long answer

Thank you for your email explaining the difficulties of opening a bank account as someone on a spousal visa. It must be very frustrating to be in the country for the next three years with your husband and not to be able to open a bank account.

The spousal visa, which is Visitor Visa Section 11 (6), is called a Visitor’s Visa because it does not grant rights to stay permanently. You can only open a non-resident bank account with the spousal visa, and you are not allowed to deposit rands in it, which makes it useless for your purposes.

You can get an endorsement on your spousal visa that will allow you to work but you can only apply for the endorsement once you have a job offer from a specific employer and the endorsement will only be for that employer.

You can also get an endorsement on your spousal visa to run a business, but you will need to prove that you’ve got a business structure in place like a Sole Proprietorship or Proprietary Limited ((Pty) Ltd).

Once you have been married for five years and have a valid spousal visa you can apply for a spousal permit which is a permanent residency and then you don’t need endorsements to work and open bank accounts.

You may want to ask advice on getting an endorsement on your spousal visa from the following organisation

The short answer

You'll need to register your customary marriage

The whole question

My wife and I married in community of property in 2019. We agreed to be in a polygamous marriage, and that I could take a second wife. I already paid lobola for my second wife. What processes do we need to follow in order for her to change her surname to mine once we’re married?

The long answer

All polygamous marriages must be in agreement with the Recognition of Customary Marriages Act of 1998 (RCMA). What that means practically is that you as the husband in an already existing customary marriage must draft a new marriage contract which must be approved by a court before you can marry another wife.

Customary marriage expert, Nthabiseng Monareng, explains that this is because customary marriages are automatically in community of property, and before a husband marries a second wife, the first wife must be given half her share of the marriage assets. This is to make sure that the first wife’s rights are protected and she is not cheated out of what is legally hers.

The court considers the rights of all the parties and may add conditions to make the second marriage valid under the RCMA.

John Manyike, the head of financial education at Old Mutual adds, “It's important to celebrate the customary marriage after lobola negotiations have been concluded. By merely paying or receiving lobola in full without the requisite celebration, the marriage is not concluded in accordance with customary law and is therefore considered invalid. That's why it's important to know the relationship between lobola and a legal marriage.”

According to customary law expert Zama Mopai, “For a customary marriage to be valid, you must first enter into the marriage according to custom, and once that is done then you can proceed to register it.”

A customary marriage should be registered within three months at the Department of Home Affairs. The registering officer at Home Affairs then issues a registration certificate. This is proof that the marriage exists and may avoid disputes in future, although if you don’t register the marriage, the marriage is still valid under the RCMA. However the Deeds Office insists on registration certificates to prove the validity of a customary marriage, so it’s advisable to register the marriage.

Registering the marriage also answers your question about how your second wife can take your surname: Home Affairs has stated that a woman has three options regarding which surname she takes when she gets married:

• She can take her husband’s surname
• She can add her surname to her husband’s (a double-barrel surname)
• She can keep her own surname.

As women married under the RCMA have the same status as women married under the Marriage Act or the Civil Union Act (which do not allow for polygamy), your second wife has the right to take your surname if she chooses and to have that surname recorded on the registration certificate.

 

The short answer

You can be sentenced to up to 12 months in prison for entering the country illegally.

The whole question

The girlfriend of a buddy of mine from Zimbabwe was arrested in January in Limpopo. She has been in custody since.

We have learnt from a police officer that she was found guilty of being a border jumper and sentenced to six months.

Is this normal?

 The long answer

Thank you for your email asking whether it is normal for a person to be sentenced to six months prison after being found guilty of border jumping.

Unfortunately, it is normal.

Under the Immigration Act, a person who is found to be illegally in South Africa - an undocumented immigrant - can be detained for up to 30 days at the Lindela Detention Centre, and this detention can be extended up to 90 days by a court. A person can be fined, or prosecuted. If the court found your friend’s girlfriend guilty, she could be sentenced to up to 12 months in prison. She could also be deported before the sentence is up.

Your friend could contact the following organisations for advice

‘There are various pathways and provisions in the law that recognise that people should not be stateless, and we are failing to ensure that these people have papers,’ says Global Movement Against Statelessness’ Christy Chitengu.
Christy Chitengu was born in South Africa and regards herself as a South African, despite her parents being Zimbabwean.
She had called South Africa home for her entire life, but for many years, Chitengu could not freely access services that many citizens and residents take for granted.
“I was undocumented for most of my life, so I have a lived experience of what it’s like to live in South Africa without papers. The exclusion from [accessing services] is vast and it touches the most vital rights,” said Chitengu.
She said she only realised the challenge of not having documentation when she was in Grade 11 and, with 10 undocumented pupils, was called into the principal’s office at her high school.
“Sitting in the office, I was questioned by the principal, who asked why I was in school and how I got into school. ‘You cannot write your matric exams if you do not have documentation,’ [said the principal.]”
National legislation states that non-South African children, including undocumented persons, asylum-seekers and refugees, may not be denied access to a basic education. This legal framework has been upheld by the courts.
Chitengu and her mother went to Home Affairs, where she was told that her South African birth certificate did not mean she could go to school here.
“A lot of people don’t realise that these handwritten birth certificates that they hold on to are insufficient, and that only comes to light when they try to access services like education,” she said.
Chitengu’s experience effectively effectively highlighted the bureaucratic hurdles that restrict access to education for many undocumented minors.
As a 16-year-old, Chitengu contacted Lawyers for Human Rights, which helped her get a court order that reaffirmed her right to education and allowed her to write her final exams.
After years of being undocumented, Chitengu obtained her South African citizenship last year, following the judgment in Ali v Minister of Home Affairs which, in summary, declared that persons over the age of 18 born of non-South African parents in South Africa were citizens, on condition that their births were registered and they could prove their presence in SA from birth to date.
Chitengu is now the co-lead of the Global Movement Against Statelessness.
Health for all
Section 27(1) of the Constitution says everyone living in South Africa has the right to access healthcare services. However, this was not what an asylum seeker experienced after suffering an injury that needed urgent medical attention.
Speaking to Daily Maverick on condition of anonymity, the asylum seeker told how he struggled to access healthcare services because he was undocumented due to inefficiencies and alleged corruption at the Home Affairs refugee reception centre.
He initially had valid documentation as an asylum seeker. It expired in 2020 and he could not renew it because of the Covid-19 lockdown. After the lockdown, his attempts to renew his papers met with challenges from Department of Home Affairs officials, including requests for bribes to speed up the process. Without documentation, he had difficulty getting a job, opening a bank account and accessing vital services.
“I realised I was in trouble when I got into an accident and injured my knee. I needed an operation, but when I went to Helen Joseph Hospital, they refused to help me unless I paid upfront and showed them my papers. I tried so many times but the staff were so rude. [They] turned me away and offered me no help,” he said.
In 2023, the public interest law group SECTION27 and three people took the Gauteng Department of Health, the National Department of Health and Charlotte Maxeke Johannesburg Academic Hospital to court for excluding asylum seekers, undocumented migrants and people dealing with statelessness from accessing free healthcare.
Chitengu said many migrant mothers were turned away from hospitals because of a government circular that authorised the denial of access to healthcare.
This is despite national legislation stipulating that all pregnant and lactating women, and children under six, irrespective of nationality and documentation status, have the right to access free health services at all public establishments.
It took a court case “to remind people that everyone has the right to basic healthcare services, but above and beyond [that], pregnant and lactating mothers also are entitled to maternal healthcare. The fact that … a pregnant mother should be turned away is a grave denial of someone’s right to healthcare,” said Chitengu.
Realising administrative justice
South Africa’s porous borders and lack of border authority have made it easier for people to enter the country illegally, increasing the number of undocumented migrants. However, inefficiency and corruption at the Department of Home Affairs have also created a situation where foreign nationals who want to live in South Africa legally cannot do so because they cannot access documentation.
“If we had a well-run Home Affairs department that attends to birth registrations and naturalisation in a timely fashion, if the Refugee Reception Office was processing people’s asylum and refugee claims in a timely manner, we would not have this amount of undocumented people in this country,” said Chitengu.
In July, in his first official act as Home Affairs minister, Leon Schreiber extended the temporary concession for foreign nationals who were awaiting the outcome of visa, waiver and appeal applications.
The extension effectively safeguards applicants from adverse consequences while they await the outcome of their applications. The concession applies to migrants who have been legally admitted into South Africa.
Schreiber also announced that the department would re-establish the dormant Immigration Advisory Board to address illegal migration in South Africa. The board will advise the government on immigration policies to ensure that they align with national interests and address the complexities of migration.
Chitengu said, “There are various pathways and provisions in the law that recognise that people should not be stateless, and we are failing to ensure that these people have papers.
“The approach should be to make sure that people are documented. Making sure people are documented does not mean giving everybody citizenship; it means giving people a piece of paper with their name and nationality that they can use to live a full life in South Africa. It all comes down to administrative justice