Fraudulent and Fraudulently obtained South African Permits

 Sa Migration – 03 April 2022

The Curious Case of the 1997 Exemption Permits

2021 has started on a busy note in terms of the South African immigration landscape. The Border Management Agency began its work having been signed into law by the president in December, a draft critical skills list has been published and now the Minister has vowed to take steps to review and investigate visas and permits irregularly issued over the years and its only February. It has been my expectation that the immigration in the post COVID-19 era would be characterised by a dramatic increase in enforcement activities of DHA. Already we have seen a more rigorous entry process and screening which is identifying those who are not complying with their respective visa conditions. On the 11th of February the Minister announced a review of those permits and visas that were issued over the years and especially permanent residence permits. The move comes after prominent figures such as the Bushiri`s were found to be in possession of a permanent residence status that was allegedly irregular or fraudulently obtained. The permit was purported to have been issued in 1997 however the Bushiri`s had only first arrived in 2009. In this week’s post I thought we should dive into this issue and shed some light as to why the Department would feel strongly about their case.

Fraudulent v Fraudulently obtained permits

Firstly I think its important to highlight the difference between a fraudulent permit and a fraudulently obtained permit. A fraudulent permit is simply a document that was not issued by DHA and is usually the product of some act of forgery. Often these permits can be identified by the marked difference in things like their font, colour and wording which would all point to a forgery. A fraudulently obtained permit is far more conspicuous in that it is issued by the department through an act of misrepresentation or corruption. This is often difficult to identify because on the face of it the permit is valid, in fact it would be valid in all respects except that it was obtained by an act of misrepresentation or corruption . This latter category is where we find most of these 1997 Exemption permits. So how exactly did these permits come into being and in such large numbers?

The Origins of the the 1996/1997 Exemption Permits

Post-independence as the new government worked to right the wrongs of the apartheid regime, several interventions were announced to register firstly citizens who had been disenfranchised through the homelands system and various acts which deprived black south Africans of their citizenship. These took place between 1994 and 1995, then in 1996, the government introduced a permanent residence program for all SADC nationals who had been working in South Africa pre-1994. The people were to be granted Permanent residence exemptions in terms of section 28 of the Aliens Control Act. The requirements for one to qualify for the exemption were, you had to have been in South Africa before 1994, on work permit, still working in SA, and be a SADC citizen. The motivations of this move were many but among these were pressure from unions whose membership was made up of these individuals, also the apartheid government discriminated against all persons of colour regardless of their origin so many of these people were part of the liberation movements and political formations.

Now what transpired thereafter is where the problem began. Not all people who applied collected their outcomes and because all these outcomes were held at various regional offices it became very easy for someone with a relationship with an Immigration Official to gain access to these. So many people were made to apply for this permanent residence long after it had been closed and many people were duped into believing that their documents were correctly issued. Moreover when they applied for Identity documents they were issued with these and when they travelled no questions were asked of them. So many, like the Bushiri`s would believe that everything was ok.

Until the latest statement by the Minister there has been no acknowledgment from the Department of this serious breach in their documentation of persons. This despite several arrests and dismissals of officials within the department who had a hand in this very elaborate scheme. In fact these permits are well known within the ranks of DHA officials that certain offices have gained infamy for being the hotspots for these permits. However, despite this no positive action has been taken to inform the public of this grave breach. There have been several efforts to have people surrender these documents such as the Zimbabwe and Lesotho dispensation permit programmes however, these have not been as effective mainly due to the vague nature of the communication around their intentions. For starters the department would ask people to surrender their documents which they know to be fraudulent, but if I have been engaging with DHA all this time and no one tells me my permit may be fraudulent I will not know.

What does the Immigration Act say ?

So, what is a persons legal position when they fall victim of such a scheme. Unfortunately, the Immigration Act does not make this any easier. Section 29(1)(f) of the Immigration Act provides that any person who is found in possession of a fraudulent permit, visa, passport or ID is a prohibited person, not eligible for entry into, residence in and not allowed to apply for a visa. If that person presently holds a valid visa but becomes a prohibited person, that visa is withdrawn. Section 48 goes on to state No illegal foreigner shall be exempt from a provision of this Act or be allowed to sojourn in the Republic on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain in the Republic through error or misrepresentation, or because his or her being an illegal foreigner was undiscovered. Therefore, the unqualified argument that I did not know that my permit was fraudulently obtained does not prevent one from be detained and deported. Finally, section 49(14) makes committing any act of misrepresentation to gain residence in the country a criminal offence.

How do I fix this?

So how does one deal with such an issue or resolve it? The Act does provide an avenue in section 29(2) which allows a person in this person to apply to the director general to have their status as a prohibited person lifted on good cause. The Director General through the office of deportation coordination will deal with these matters on case-by-case basis. Not taking any action is certainly not advisable given that the Minister has already announced a warning bell on these and other fraudulently obtained permits and visas.

Conclusion

As a parting shot, I just want to say when it comes to immigration issues there are no short cuts. As tempting as it may appear to be the consequences of cutting corners are far more dire than the hassle of going through the motions. It’s always better to take the long road. Immigration issues such as fraudulent documents are extremely challenging to deal with, however not acting in the hope that they will go away is not a strategy. Eventually DHA always catches up.

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South Africa Working Visas / South Africa Working Visas

South Africa Working Visas

South Africa seeks highly skilled individuals to live and work in SA.

SA Migration Services will provide professional assistance to arrange your work visa for you if you qualify.

Work Visas are regulated in terms of Section 19, Regulation 18 and items 18 (1), 19(2), 20, 21 and 22, of Schedule A.

There are three common types of Work Visas:

• General Work Visa
• Inter Company Transfer Visa
• Critical Skills Visa

• SA Visa /
• Financially Independent Visa

Financially Independent

An alternative to the Retirement Visa route exists in the financially independent visa for which candidates would need to be able to demonstrate a net asset value totalling not less that R12 million.

In addition, it would also be necessary to demonstrate proof of payment of R120,000 as a non-refundable sum to the Director General of Home Affairs. The application for a financially independent visa will lead to permanent residence.

• A retired persons visa may be issued for a period exceeding three months to a foreigner who intends to retire in the Republic, provided that the foreigner provide proof that such foreigner has the right to a pension or an annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life from the country of his or her origin; or a minimum prescribed net worth.
• The Department may authorise the holder of a retired person Visa to conduct work under terms and conditions as the Department may deem fit to determine under the circumstances.
• A retired person visa may allow its holder to sojourn in the Republic on a seasonal or continuous basis; and not exceed a four-year period, at the expiry of which it may be renewed one or more times.

South African Business Visa

A business visa may be issued by the Department of Home Affairs to a foreigner intending to establish or invest in a business in South Africa in which he or she may be employed, and to members of such foreigners’ immediate family providing that certain requirements have been met.

The Act calls for investment of R5,0 million in a business and you need to make sure you employ 60% South African citizens or permanent residents to get both a temporary and permanent business visa, you can get these visas with less capital investment - sometimes for as low as R600,000 investment using our expert team at SA Migration.

Many businesses do not require a capital investment as large as R5 million and in certain cases, you are allowed to reduce this amount and commit to a smaller investment if your business falls within the certain industries. The following businesses to be in the national interest, and therefore qualifying for reduction or waiver of the capitalisation requirements as determined to be in the national interest in relation to a Business Visa: Many of these business owners do not have the required investment amounts. If this is the case and the business falls in line with one of the following industries, a capital waiver can be requested. This would mean a reduction in the required investment amount.

The industries are:

(a) Agro-processing

• Fisheries and aquaculture i.e. freshwater aquaculture and marine culture
• Food processing in the milling and baking industries
• Beverages viz. fruit juices and the local beneficiation, packaging and export of indigenous teas
• High value natural fibres viz., organic cotton and downstream mohair production
• High value organic food for the local and export market
• Biofuels production viz. bioethanol and biogas
• oils: tea extracts, including buchu, honeybush: and other oil derivatives (avocado, amarula etc.)
• Diversification / beneficiation of biomass sources i.e. sugar, maize

(b) Business Process Outsourcing and IT Enabled Services

• Call centers
• Back Office Processing
• Shared Corporate Services
• Enterprise solutions e.g. fleet management and asset management
• Legal process outsourcing

(c) Capital / Transport equipment, metals and electrical machinery and apparatus

• Basic iron and steel
• Basic precious and non-ferrous metals
• Casting of metals
• Other fabricated metal products: metalwork service activities
• General purpose machinery
• Tooling manufacturing
• Foundries
• White goods and associated components
• Electric motors, generators and transformers
• Electricity distribution and control apparatus
• Insulated wire and cable
• Accumulators, primary cells and primary batteries

(d) Electro Technical

• Advanced telecommunications
• Software development
• Software and mobile applications
• Smart metering
• Embedded software
• Radio frequency identifications
• Digital TV and Set Top Boxes due to migration to full digital television
• Process control, measurement and instrumentation
• Security and monitoring solutions
• Financial software
• Manufacturing sensors

(e) Textile, Clothing and Leather

• Spinning, weaving and finishing of textiles
• Knitted and crocheted fabrics and articles
• Wearing apparel except fur apparel
• Dressing and dying of fur
• Leather skins and hides beneficiation

(f) Consumer goods

• White goods and associated components

(g) Boatbuilding

• Boatbuilding and associated services industry
• Engines and engine systems
• Marine equipment and accessories

(h) Pulp, paper and Furniture

• Manufacture of paper products: publishing, printing and reproduction
• Manufacture of articles of straw and plaiting materials
• Paper and paper products and furniture
• Manufacture of wood and products of wood and cork

(i) Automotives and Components

• engines, radiators, filters and components thereof
• air conditioners / climate control systems
• alarms and Tracking devices
• axles, transmission shafts
• body parts and panels
• catalytic converters, silencers and exhaust systems and components
• wiring harnesses, instrument panels vehicle interiors, electronic drive train components,
• lighting equipment
• seats and parts thereof, seatbelts, leather covers
• suspension and shock absorbers, springs and parts thereof
• steering wheels, columns and boxes
• ignition, starting equipment, gauges and instrument parts

(J) Green Economy Industries

(jj) Power generation:

• Nuclear Build Programmer i.e. joint ventures, consortiums and the establishment of new companies to grow South Africa's nuclear manufacturing capability and nuclear supply industry to supply into the nuclear build programme
• Independent power generation, energy infrastructure and alternative energy

(jjj) Renewable Energy:

• Onshore wind power - manufacture of turbines/blades
• Solar PV and Concentrated Solar Power manufacture/assembly
• Biomass
• Small hydro
• Lowering greenhouse gas emissions from landfill sites
• Energy efficiency and energy saving industries
• Solar water heaters
• Waste Management and Recycling
• Reducing landfill

(k) Advanced Manufacturing

• Nano-materials
• High performance materials based on natural resources (advanced bio-composites
• Advanced materials, polymers and composites
• Medical devices, diagnostics and composites
• Space e.g. satellite manufacturers etc. and astronomy e.g. SKA, telescopes, dishes etc.
• Composites (intelligent textiles used in medical, building and construction industries)
• Continuous fibre reinforced thermoform composites
• Biochemical and biologics for applications in agriculture, industry and health/medical sectors
• Electricity demand Site Management Solutions to improve electricity efficiency usage
• Lasers and laser-based additive manufacturing various applications
• Advanced Robotics Mobile Intelligent Autonomous Systems
• Applications in the mining industry, data collection and analysis
• Bio - manufacturing - Biochemical and biologics for applications in agriculture, industry and health/medical.
• Fuel cells and Technology

(l) Tourism infrastructure

• Accommodation - hotels, boutique hotels, lodges and resorts
• urban integrated tourism/ entertainment precincts
• adventure, - eco-, sport-, conference- and cultural tourism
• infrastructure developments
• leisure complexes and world class golf courses
• harbour and waterfront developments
• trans frontier conservations areas
• Tourism transport - aviation, rail, cruise liners etc.
• green building and green technologies for tourism
• attractions and activity - based tourism.
• museums and heritage

(m) Chemicals, plastic fabrication and pharmaceuticals

• basic chemicals
• water treatment chemical products
• man-made fibres
• plastic products: polypropylene and polyvinculchloride
• medical (drips and syringes), manufacture of active pharmaceutical ingredient
• (APIs) for key anti-retrovirals (ARVs)
• Manufacture of reagents for AIDS/HIV diagnostics
• Production of vaccines and biological medicines

(n) Creative and Design Industry

• Film studios, treaty film co-production ventures, distribution infrastructure
• Servicing of foreign productions
• Production of film and documentaries, commercials, stills photography and
• Multi-media
• Post-production
• Design
• Jewellery manufacturing and design
• Fashion design

(o) Oil and Gas

• Maintenance ship and rig repair
• Fabrication - equipment and specialised components
• Specialised services - training and accreditation
• Specialised services - non-descriptive testing, inspection services, SHEQ services
• Exploration - technical services: seismic surveys, logging, environmental impact assessments, etc.
• Exploration - offshore
• Exploration - onshore shale gas
• Exploration - onshore coal bed methane and underground coal gasification
• Infrastructure - refineries (Oil and GTL)
• Infrastructure - terminals LPG/LNG import, storage and distribution
• Infrastructure - ports and associated infrastructure
• Infrastructure - storage
• Logistics - pipeline

(p) Mineral beneficiation

• Downstream processing and value addition

(q) Infrastructure Development

(r) ICT

• Geoamatics and Digital media
• Wireless and Telecom
• Electronics
• IT
• Software Development
• Advanced programming

List of undesirable Business in South Africa;

• Businesses that import second hand motor vehicles into the Republic of South Africa for the purpose of exporting to other markets outside the Republic of South Africa
• The exotic entertainment industry
• Security Industry

Our team of professionals at SA Migration International will assist you and help you to obtain your business visa for you.

South Africa is going through a very exciting stage at the moment and there is lots of opportunity to be involved in this emerging economy and the government welcomes anyone wishing to invest and create employment. Especially for small business owners, the markets are extremely lucrative and the government welcomes anyone who wants to invest.