South Africa’s Department of Home Affairs refiled long-awaited changes to its work permit regime to allow for the creation of a so-called nomad visa for remote workers.
The May 20 gazetting of the changes, which had been withdrawn last month after the department failed to observe a mandatory period for public comment, means that the changes are now law.
It’s also seeking to allow people employed and paid by companies elsewhere to live in the country as long as they earn at least R1 million ($55,404) annually. The visa comes with a short-term tax exemption.
The step, acting on recommendations made by the office of the president, comes amid criticism from some of the nation’s biggest foreign-owned employers over their inability to get technicians and executives into the country.
South Africa’s byzantine system means applicants can wait for more than a year to get a work permit even though a poor local education system has left companies without skilled workers.

Many migrant children, having been told they would be safe and things would be better in South Africa, are finding this to be far from the truth.
The Equal Education Law Centre is concerned about the impact that the final White Paper on Citizenship, Immigration and Refugee Protection will have on migrant and undocumented children’s rights - including the right to education.
On 10 April 2024, Cabinet approved the final White Paper on Citizenship, Immigration and Refugee Protection. It was gazetted on 17 April. The document outlines sweeping plans for reform, including increased border monitoring, establishing immigration courts and withdrawing from international and regional human rights instruments.
The Equal Education Law Centre is concerned about the impact that this will have on migrant and undocumented children’s rights - including the right to education.
The white paper refers to the 1951 United Nations Convention on the Status of Refugees and its 1967 Protocol. South Africa acceded to these instruments in 1996, without entering any reservations. But the Department of Home Affairs, at least according to the white paper, appears to have regrets about this.
The white paper states that “South Africa did not make any reservations in respect of the 1951 Convention and 1967 Protocol”. The document’s explanatory memorandum goes on: “These reservations mainly deal with socio-economic rights such as access to health, education, social welfare, [the] right to work and trade and others. This was a fatal mistake on the part of the government.
“It is not surprising that South African courts developed jurisprudence regarding asylum and refugees which is unfavourable to the interests of government.”
What does the department hope to achieve?
It is not explicit from the white paper what the Department of Home Affairs believes withdrawing from the UN Convention and Protocol would achieve.
Does the department hope that withdrawing would stifle future litigation that could further expand the rights of migrants and undocumented persons?
Does the department intend to repeal and enact new legislation that would, without any international obligations binding it, remove existing rights from migrants?
Neither perceived goal could, in its entirety, be achieved by the department when taking into account South Africa’s rights-based legal framework.
Attempts to remove existing rights from migrants and undocumented persons, like the right to education, would fail. The right to education is already a firmly entrenched right for migrant and undocumented children.
In the Centre for Child Law and Others vs Minister of Home Affairs, it was stated that the right to education belongs to everyone, regardless of nationality.
On this basis, and on the basis of a circular issued by the Department of Education urging schools and districts to comply with the judgment, many undocumented children who were previously unable to access schools have been enjoying the right to education.
Any action to now remove the right to education for migrants or undocumented persons would be an impermissible regression of rights: Section 7(2) of the Constitution places an obligation on the State that requires it to refrain from any action that would infringe the rights in the Bill of Rights.
This includes the right to education - something that has been affirmed by the Constitutional Court.
In essence, the State is under an obligation not to interfere with, infringe upon or restrict the education rights of migrant, stateless and undocumented children.
Similarly, a desire to stifle future precedent on the right of migrants and undocumented learners to education would be futile. If this is the department’s intention, it is a stance that misunderstands the primary source of South Africa’s obligations to all persons within its territory - that source being the Constitution.
It was upon the fundamental values enshrined in the Constitution that South Africa acceded to the 1951 Convention, the 1967 Protocol and the OAU Convention. This means that the rights implicated in the white paper exist and are primarily enforceable through the Constitution before international law.
Courts may (and do) take into account international law when interpreting the Bill of Rights, but also rely directly on the Constitution itself. This is evident from the court’s decision in the Centre for Child Law matter which was based on a Constitutional Court judgment, the latter being a decision that was itself rooted primarily in the Constitution.
This is not to say that our Constitution renders our membership in the Convention and Protocol superfluous. Our membership is a signal to the international community that we remain committed to the fundamental human rights which define our democratic dispensation and also enhance our accountability by requiring South Africa’s compliance with the Convention and Protocol’s reporting mechanisms and international transparency.
Remaining a member of the Convention and Protocol is, therefore, an indication that we are capable of meeting the standards which we have set for ourselves as a nation.
Tactics ahead of elections
The white paper appears to suggest that South Africa does not have the resources to provide socio-economic rights to refugees, asylum seekers and other migrants. The implication is that asylum seekers are a drain on the fiscus.
However, the department has wholly failed to present evidence that the rights migrants hold have had any impact on government’s provision of socio-economic rights to South African people.
Evidence abounds, however, that migrants are frequently used for political capital - and often as scapegoats - by governments that fail to meet their service delivery obligations.
It would be regrettable for that perception to gain traction in South Africa.
It would also be in stark contrast to South Africa’s position in the international community as a champion of human rights.
As we continue to demonstrate our commitment to protecting and defending vulnerable and oppressed persons globally, this commitment must include the vulnerable persons who seek protection and refuge within our borders.

The Department of Home Affairs refiled long-awaited changes to its work-permit regime to allow for the creation of a so-called nomad visa for remote workers.

The 20 May gazetting of the changes, which had last month been withdrawn after the department failed to observe a mandatory period for public comment, means that the changes are now law.

It’s also seeking to allow people employed and paid by companies elsewhere to live in the country as long as they earn at least R1 million annually.

The step, acting on recommendations made by the office of the president, comes amid criticism from some of the nation’s biggest foreign-owned employers over their inability to get technicians and executives into the country.

South Africa’s byzantine system means applicants can wait for more than a year to get a work permit even though a poor local education system has left companies without skilled workers.

New Labour Court and Labour Appeal Court rules, including changes to restraint of trade and holiday-time litigation, have been published in the Government Gazette.
According to Chloë Loubser and Ayanda Nkabinde from Bowmans, the new rules include major procedural changes and technical advancements. These aim to ensure that matters in the Labour Court are handled efficiently, which should help clear the challenging backlog.
Although the new rules’ effective date is yet to be published, Loubser and Nkabinde said they should be published in another Gazette in due course.
Practitioners will need to become familiar with the new technical details of the rules, with the experts highlighting some of the key provisions that employers should know about:
Holiday break
A welcome addition to the rules is the introduction of dies non (a day where no legal business may be done) over the Christmas period.
In the past, the time periods for filing court processes still occurred uninterrupted during the festive period, meaning that litigants had to remain on-call.
“The rules now exclude the period between 16 December and 15 January in the definition of ‘day’ when calculating time periods,” the experts said.
“This will no doubt come as a relief to employers, whose holiday plans will no longer be scuppered by unexpected litigation.”
Review applications
Review applications are one of the most common applications on Labour Court rolls, and the new rules state that these applications must now contain no more than a concise statement of the grounds of review.
An answering affidavit must also be concise regarding why the application is opposed.
Failure to comply with the new requirements could result in the litigant being punished by an appropriate costs order.
“Gone are the days of lengthy affidavits with a detailed chronology of the background facts. The effect of these changes is that going forward, it is best to be brief,” said the experts.
“This may, too, be beneficial for employers, as it could well bring down legal costs in preparing (and opposing) these applications.”
“The time periods for filing the record and subsequent process in the review are also now clearly stated, after years of uncertainty created by some contradictions between the rules and the Practice Manual.”
Restraint of trade
The new rules also include a procedure that a party seeking to enforce a restraint of trade through an unguent interdict must follow.
“In particular, the rules make provision for the exchange of four sets of affidavits (something that occurred regularly in practice but was not expressly catered for in the rules).”
Time periods for filing each affidavit are set, and the application will be provisionally enrolled for hearing during the week following the week in which heads of argument have been swapped.
This means an opposing application for restraint of trade could be heard just over a month after a party launched it.
In terms of urgent hearings, an application for restraint of trade will be enrolled only where the procedure set out in Rule 39 (the rule for restraint of trade) has been strictly adhered to by the applicant.
Online Court
Following their normalisation during the Covid-19 pandemic, the new rules also formally make provisions for virtual hearings on request by one or more parties or by direction by the presiding judge.
That said, the default position states that all proceedings must be conducted in open court.
The decision to go online rests with the presiding judge, who will consider the nature of the proceedings, the public interest of the proceedings and the principles of open justice.
Media Access
Media access to proceedings is also now regulated in the new rules.
“Unless the court directs otherwise, members of the press will be entitled to take still photographs and/or video footage during court activities for 15 minutes before the commencement of proceedings each day and during any adjournments, arguments where no evidence is led and judgment and/or other juridical rulings,” said the experts.
If a media representative wishes to take a record of any judicial proceedings, they will need to apply to the Court.

The Department of Home Affairs has re-gazetted amendments to South Africa’s immigration laws, after previously gazetting and then withdrawing them.
On 28 March, the DHA published the amended immigration regulations.
However, because this was a day before the closing date of the public comment period, the minister, Aaron Motsoaledi issued a notice withdrawing the changes.
This created confusion and consternation among businesses and in the tourism industry in particular, as the amendments introduced long-sought-after changes to visas and the entry of critical skills to South Africa.
Among other things, the regulations replaced the highly-contested critical skills list with a new points-based system and introduced the remote work visa class.
At the time of the withdrawal—12 April—the minister said that the regulations would be revised within a week. However, it took more than a month.
On Monday (20 May), the amendments were regazetted.
The regulations were received positively by businesses in South Africa, with the Consumer Goods Council of South Africa saying that they should ease the administrative burden that international companies with businesses in South Africa face when hiring skilled foreigners.

Remote Work Visa
The Remote Work Visa is designed for individuals wishing to work in South Africa while working for foreign employers.
The visa targets high-earning individuals and aims to stimulate the South African economy.
The remote work visa applies to foreign employers who derive a foreign source of income on a remote basis, provided that:
•    The worker earns a gross income of no less than the equivalent of R1 million per annum
•    If the visa is issued for a period not exceeding 6 months within a 36 month period, the foreigner may apply to be exempted by SARS from registering as a taxpayer. If the visa is issued for longer, they must register.
General Work Visa changes
The aforementioned Points-Based system for a General Work Visa aims to eliminate the need to obtain a letter from the Department of Labour.
This new streamlined approach looks at criteria based on factors, such as age and qualifications to determine visa eligibility on a points-based scale.
The system is based on:
•    Age
•    Qualifications
•    Language skills
•    Work experience
•    Offer of employment
•    Salary
•    any other relevant factor
Critical Skills List
Organisations can now also expedite the gazetting process for critical skills that are seen as essential, removing the previous four-year waiting period.
This should facilitate swift approval for in-demand skills.