South African law provides for two kinds of visa categories temporary and permanent. A temporary status is called a visa and a permanent residence dispensation is called a permit. 

Why would someone need permanent residence?

For a foreigner who intends to come and reside in South Africa on an indefinite permanent basis, they are well advised to apply for a permanent residence permit. To do so they need a long-term temporary residence visa. 

A foreigner on a short-term tourist visa cannot apply for permanent residence in South Africa. 

Am I ready to apply for a permanent residence permit?

According to the Immigration Act, there are 11 specific permanent residence permit categories that an applicant can fall under. Some of these categories which fall under section 26 of the Act are referred to as “direct residency”, and others which fall under section 27 of the Act are referred to as “residency under other grounds”.   

• You are eligible to apply for permanent residence if have been in possession of work visas for at least the past five consecutive years, with a permanent job offer secured in South Africa.  A minimum of five years work permits need to have been endorsed in a passport. Intra-Company Transfer work visas are excluded and are not considered for this purpose. 
• You are eligible to apply for permanent residence If you have been espoused (by marriage or life-partnership) to a South African citizen or permanent resident for at least five years.
• You qualify to apply for permanent residence if you are the child, under the age of 21, of a citizen or permanent resident.
• You qualify to apply for permanent residence if you are the child of any age of a citizen.
• You are eligible to apply for permanent residence if you hold a critical skills work visa, as per Critical Skills List published in the Government Gazette, AND you have accrued at least five years of post-qualification experience (not necessarily related to the critical skills).
• You may be eligible to apply for permanent residence on the basis of your intended investment in an existing South African business or if you intend to establish and invest in South African business.  This investment should be no less than R5 million, or a lesser amount as agreed by the DHA should the business enterprise fall within one of the prescribed National Interest sectors of the South African economy.
• You may be eligible to apply for permanent residence on the basis that you have held refugee status in South Africa for at least the past five years.  For this purpose you will require obtaining a certification from the Refugee Standing Committee confirming that you will remain a refugee indefinitely.
• You may be eligible to apply for permanent residence on the basis of your receipt of pensions or irrevocable annuities for the rest of your life.
• You are eligible to apply for permanent residence on the basis that you can demonstrate your net worth to be equivalent to no less than R12 million AND undertake to pay to the DHA a non-refundable once off fee of R120,000.00 upon the approval of your application.

 

How do you apply for a permanent residence permit in South Africa?

Once a foreigner is in South Africa on a long-term temporary residence visa enabling him or her to apply, he or she will be eligible to apply for permanent residence in a category they comply with.

Short-term  and long-term visitor visa holders are not eligible to apply for permanent residence from within South Africa unless exceptional circumstances as regulated apply.  Spousal-based visitor visa holders may however apply for permanent residence.

The submission category of a permanent residence permit application may, in some cases, also determine the type of long-term visa the foreigner must hold to comply with the permanent residence application’s specific requirements.

Applications for permanent residence made in terms of sec 26(a) of the Immigration Act for instance, require the foreign applicant to be in possession of a work category visa at the time of submission.

Applications made in terms of sec 27(b) of the Act require the foreign applicant to be in possession of a critical skills work visa.  No minimum period of work in South Africa is required to comply with this category of permanent residence.

If I studied in South Africa can I apply for permanent residence in South Africa?

Having studied in South Africa alone does not make a foreigner eligible to apply for permanent residence in South Africa.

Foreign graduates of South African tertiary institutions who graduate in the area of critical skills are eligible to apply for permanent residence with no delay in terms of sec 27(b) of the Immigration Act.  The Minister of Home Affairs has granted these students a special waiver in April 2016.

If you were born in South Africa of foreign parents and if your birth was registered with the Department of Home Affairs, upon turning 18 years of age if you have lived in South Africa since your birth, you may be eligible to apply for South African citizenship by naturalization.

I am married to a South African can I apply for permanent residence?

Only the spouse, by marriage or life-partnership, of at least 5 years of a South African citizen or permanent resident is eligible to apply for permanent residence on the basis of the spousal relationship.

My children are South African citizens can I apply for permanent residence?

The relative within the first step of kinship of a South African citizen or permanent resident is eligible to apply for permanent residence in terms of sec 27(g) of the Immigration Act.  The first step of kinship includes parents and children.

The South African relative needs to satisfy the Department of Home Affairs that he or she can financially support the foreign relative in South Africa.  Minor dependant children cannot give financial assurance to their parents and for this reason this category of permanent residence applications is restricted to the parent of a minor child.

Can my accompanying family apply for permanent residence with me at the same time?

Yes, as long as the applications of the whole family are submitted at the same time then the immediate accompanying family of foreigners applying for permanent residence may apply together.

Should the applications not be submitted at the same time, the accompanying family will need to wait for the successful outcome of the main applicant’s permanent residence application to be in a position to apply for permanent residence as his or her immediate family.

The foreign spouse of a permanent resident applicant is only eligible to apply for permanent residence having been espoused for at least 5 years.

The foreign spouse of a critically skilled individual applying for permanent residence in terms of sec 27(b) of the Immigration Act does not need to have been espoused for 5 years to apply for permanent residence.

The foreign spouse of an applicant who submits an application for permanent residence on the basis of a business in terms of sec 27(c) of the Act does not need to have been espoused for a period of five years.

Can I apply for permanent residence if I was v-listed?

Permanent residence may be issued, subject to the prescribed requirements, to a person of “good and sound character”.  Police Clearance Certificates from any country a foreigner has resided above the age of 18 are required for the purpose of all permanent residence applications.

In terms of section 30(1) of the Act, a foreigner who is declared an undesirable person does “not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit”.   An undesirability needs to be uplifted to enable a foreigner to obtain permanent residence.   A pending application for permanent residence may be rejected on the basis of the foreigner being an undesirable person.

In terms of Section 29(1) of the Act: “…prohibited persons …do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit”.   A prohibited person cannot be granted permanent residence.  Only upon the successful upliftment of a prohibition a foreigner is eligible to apply and/or obtain permanent residence.

Can I lose permanent residence in South Africa?

Each permanent residence permit certificate is issued, based on category of submission, with specific conditions which are endorsed on the certificate. Permanent residence permit holders are advised to read carefully the conditions and when necessary to seek professional advice.

For instance:

• A permanent residence permit issued to the spouse of a South African citizen or permanent resident shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death. As per section 26(b) of the Immigration Act.
• A permanent residence permit issued to the child under the age of 21 of a citizen or permanent resident “shall lapse if such foreigner does not submit an application for its confirmation within two years of his or her having turned 18 years of age.  As per section 26(c) of the Immigration Act.
• A permanent residence permit issued on the basis of a business shall lapse if the holder fails to prove within two years of the issuance of the permanent residence permit and three years thereafter, to the satisfaction of the Director-General, that the prescribed financial contribution to be part of the intended book value is still invested.  As per section 27(c) of the Immigration Act.

All permanent residence permit holders are required not to be absent from the Republic for more than 3 consecutive years to maintain their status valid.

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Unsung, unpaid and overworked is how foreign health workers working in hospitals around the country have been described.

Recent reports have brought to light some of the challenges faced by supernumeraries in the health sector.

In a letter published on IOL last week, the wife of a supernumerary detailed the hardships faced by her husband and many others in his position.

“Many supernumeraries already face untold financial hardship. Now, with Covid-19, the strain has doubled financially, mentally, emotionally and socially. Unlike their South African counterparts, they do not enjoy the same occupational compensation and protection, as they are not regarded as employees. Their medical oath when they started practising medicine has proven to be beyond their country of origin,” she said.

Unknown to many in the public, supernumerary doctors have been part of the South African healthcare system for almost 25 years.

What is a supernumerary registrar?

They are unpaid non-South African residents, mostly from beleaguered facilities in Africa, working in local hospitals to attain competence in aspects of surgical practice.

What role do they play at health centres?

Supernumeraries participate in the same training program with the same service delivery requirements as South African registrars.

They work under supervision of the relevant department head or his/her designate, as a registrar. But they will receive no remuneration from the university, department, hospital or Department of Health.

On completion of their training, they return to their home country with clinical and academic experience to expand existing specialist services or create units providing specialised care.

Where are they from?

Currently, the majority of the supernumeraries originate from African countries with limited or no access to specialist training.

They are either self-funded or sponsored by their respective countries. They finance their own board and lodging and transport to the different hospitals they rotate through for their specialised training.

In 2015, supernumeraries attached to the Department of Surgery at the University of KwaZulu-Natal (UKZN) constituted 21% of the entire registrar complement and 26% during 2016.

Non-South African citizens who have refugee or permanent residence status are not eligible to join the university in such a position. They are contractually bound to leave South Africa upon completion of their studies.

Challenges

They struggle to registration with the Health Professions Council of South Africa (HPCSA) and to obtain work permits and visas. There’s a lack of health insurance and financial support provided to the supernumerary registrars.

In 2017, a study on the experience of supernumerary registrars in the country highlighted many of them experienced xenophobia from patients (24%) and colleagues (48%).

Following the arrival of the Cuban doctors to help the country during the height of the pandemic, Stellenbosch University's Centre for Medical Ethics and Law’s AJ Arendse, JF Coelho and SH Gebers have argued although supernumerary programmes provided training to these doctors, the SA healthcare system benefited substantially from their services.

“The vast amount of money spent on Cuban doctors recruited to aid SA during the pandemic – in contrast to the lack of health insurance and financial support provided to the supernumerary registrars – raises a contentious point. In light of this neglect, their duty to SA during the pandemic remains an ethical quandary,” they wrote.

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2020 was an unpredictable year, to say the least. Each new week seemed to hold its own uncertainties and concerns. And in 2021, the world is still adjusting. In such times, it is important for tenants of residential property to know what their rights are in terms of premature cancellation of lease agreements that may be necessitated by COVID-19, the pursuant lockdown regulations and general change of personal circumstances.

As a point of departure, the tenant can consult the lease agreement to check if there are any provisions pertaining to early cancellation. If there is no such clause, or the terms of the clause are unacceptable, the tenant can turn to the provisions of the Consumer Protection Act 68 of 2008 (“the CPA”), if applicable.

The CPA will be applicable to residential lease agreements, except in rare circumstances. Consult with your lawyer to determine the CPA’s applicability to your lease agreement.

If the CPA is applicable to the lease agreement, the tenant would be able to lawfully cancel the lease agreement at any time, even if there is no cancellation clause in the agreement. Section 14(2)(b) of the CPA states that a tenant may cancel the lease agreement, despite any provision of the lease agreement to the contrary, by giving 20 business days’ notice in writing.

There may however be financial consequences for the tenant as the landlord can impose a reasonable cancellation penalty on the tenant upon early cancellation. There are guidelines in Regulation 5 of the Act as to what a “reasonable cancellation penalty” entails.

The cancellation penalty should not be exorbitant, and if the tenant feels that the landlord’s claim is excessive and unfair, they can approach the National Consumer Tribunal or the Rental Housing Tribunal. Tenants can also approach their lawyer, who can address the landlord and negotiate a reasonable cancellation penalty, considering the relevant facts of the matter.

Upon expiry of a fixed-term lease agreement the lease agreement will automatically carry on a month-to-month basis, unless the tenant expressly agreed to the renewal of a further fixed-term or the tenant terminated the agreement upon the expiry date. In such a case, the provisions of the Rental Housing Act 50 of 199 are relevant. The landlord can cancel the lease agreement, in terms of the Act, by giving one calendar months’ notice.

In Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC), the Western Cape High Court held that one month’s notice must be interpreted as a notice given before the end of the month, to terminate the contract at the end of the next month.

There are therefore various considerations at play when a tenant considers premature cancellation of a lease agreement. To avoid unnecessary disputes and an exorbitant cancellation penalty, a tenant would benefit from consulting their attorney before giving notice of cancellation to their landlord.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Failure to resolve ICT challenges at Home Affairs contributes to long queue

The Portfolio Committee on Home Affairs has expressed its disappointment in the failure of the Department of Home Affairs to resolve the perennial Information Technology (IT) challenges that continue to hamper its ability to deliver quality services.

The committee received briefings yesterday that included a briefing from the department on its annual report for the financial year 2019-20, and a briefing from the Auditor General South Africa on the audit outcomes of the annual report for the financial year 2019-20 of the department.

The Chairperson of the committee, Adv Bongani Bongo, said: "It is unacceptable that the IT environment has not improved over the past few financial years and is worrying in the context of a department with a vision to be totally automated in delivering services. It is also unacceptable that it has taken this long to fill the position of the Deputy Director-General (DDG): ICT which the committee considers critical in resolving technological challenges at the department."

The committee highlighted the impact of the lack of improvement of the IT environment and its impact on the war on queues programme. It said the glaring and perpetual long queues that are evident at service points indicate the far reaching implications of the impact of the lack of improvement within the IT environment.

It is further concerning, the committee said, that the long queues are prevalent at a time of the Covid-19 crisis and when they pose a high risk of being super-spreader sources.

Despite this, however, the committee has welcomed the assurance it got from the department of interviewing the shortlisted applicants from today to fill the position of the DDG: ICT. The committee will await a report within a month from the department on progress in filling the critical positions within the department's IT environment.

The committee has welcomed the achievement of 75% of planned targets over the financial year by the department. While the committee appreciates the department for the achievement of its service delivery targets, it has called for a detailed plan indicating clear timelines on achieving the remaining targets.

Meanwhile, the committee is concerned that the department is stagnating in its audit opinion especially because the matter of emphasis continues to be on material findings on compliance with legislation. To this end, it said, the R284 million in irregular expenditure with R277 million of payments made on the ABIS project must be investigated and concluded. "The committee remains of the view that adherence to key legislation and policy processes is essential in ensuring prudent spending of state resources," Adv Bongo emphasised.

Also, the committee has expressed its concern over contingent liability that the department is facing as a result of litigations, but it is reassured by the department's employment of staff within its legal services unit to ensure timely response to legal matters against itself.

The committee welcomed the decrease in fruitless and wasteful expenditure in the year under review. Furthermore, it expressed its appreciation on the department's move to institute investigations against the alleged perpetrators of fruitless and wasteful expenditure with the aim of recovering the wasted financial resources.

Regarding the investigation on how Prophet Shepherd Bushiri and Mary Bushiri absconded from South Africa, the committee remains committed to getting to the bottom of the matter and will engage other committees within the Justice and Security cluster to get a full briefing from the cluster with the aim of getting reasonable answers on the matter.

Meanwhile, the committee has noted and welcomed the Minister of Home Affairs, Dr Aaron Motsoaledi's apology regarding comments he made during an interview on TV last Sunday which the committee was unhappy about. The Minister told the committee that he respects the committee's constitutional mandate of oversight over the department and that his comments were in no way an affront to this important mandate.

 

Regarding the correspondence which the committee Chairperson has received on the matter of alleged fraudulent Corporate Visas issued to new mining companies, Bokamoso and Phenyo mining solutions, the committee has resolved to request the department to suspend the permits that were given to the two mining houses.

Furthermore, the committee has instructed the department to conduct an investigation into the issuance of those permits especially in the context of the allegations of preferential treatment given to these entities and it has given the department a deadline of the end of March 2021 to submit a comprehensive report on the matter.

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 'We won't turn away undocumented people,' Treasury boss reveals

The government has revealed that illegal immigrants will also benefit from the rollout of the Covid-19 vaccine.

National Treasury director-general Dondo Mogajane said this during a virtual meeting between his department and the SA National Editors Forum on Wednesday afternoon.

“We are in SA and we have many millions of undocumented people and [we can't say they shouldn't receive the vaccine as they are undocumented]. The demand for the vaccine is going to be exceeded, and we are not going to turn away undocumented people…” said Mogajane, without revealing more details.

He said that getting the vaccine was for the public good, and it would be appreciated if medical aid companies could procure vaccine dosages for two or three extra people who are not their clients.

“We welcome all the donations and if medical aids want to pay for three people extra, and they must know that it's for the public good,” he said, as he urged donations relating to the vaccine to be channelled towards the Solidarity Fund.

Mogajane noted that the Covid-19 vaccination programme was the responsibility of the state and “the state cannot be found wanting” in this regard.

Treasury deputy director-general Ismael Momoniat said that in the meetings he has been attending at Nedlac they have seen a growing demand for the extension of social grants for unemployed people, as well as the extension of the Temporary Employment Relief Scheme and the loan guarantee scheme.

Momoniat said that some people made these demands as if the country was still on level 5 hard lockdown.

He, however, said they were busy talking with the department of employment and labour about the relief measures.

Another Treasury official said a request for deviation from normal processes in the procurement of the vaccine and in the transportation and distribution had been approved.

The official said the four logistics companies, which include DSV, had been awarded a contract to transport the Covid-19 vaccines at temperatures ranging between minus -17°C and 5°C.

The official said that contracts would be reviewed in six months

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