The Hawks raided the Pretoria high court today over allegations that an employee has been issuing fraudulent notices of motion to undocumented foreign nationals to prevent their deportation to their countries of origin.
A notice of motion is a formal request to the court that notifies it and the opposing party of a party’s intention to seek a specific order or relief.
Gauteng Hawks spokesperson Col Katlego Mogale said: “The operation relates to allegations of fraudulent notices of motion being unlawfully issued by an identified employee of that court. It is alleged that the said employee has been issuing fraudulent notices of motion to undocumented foreign nationals to prevent their deportation to their countries of origin.
“This search and seizure operation specifically targeted one office and an individual believed to be central to the commission of these offences, and exhibits were seized for further investigation,” said Mogale.

What is a waiver?

The immigration act in South Africa grants the Minister of Home Affairs the authority to waive specific requirements of the act. When a requirement is waived, an individual or corporation is exempt from that requirement. Simply put, the minister can waive a specific requirement if there is a “good cause.” Your waiver application must be well-justified to convince the Department of Home Affairs to grant the exemption. The applicant must provide sufficient evidence to support the waiver request, and the Department of Home Affairs will decide whether to approve or deny the waiver.

Types of South African Visas: When to Apply for a Waiver

1. Business Visa: Apply to reduce the investment amount requirement of R 5 million if you receive a positive outcome from the Department of Trade and Industry.

2. Family Visa: When unable to obtain a police clearance certificate.

3. Labour Certificate: Apply to waive the Department of Labour certificate.

4. Corporate Visa: A business may apply for a blanket waiver for the same requirement.

5. Temporary Residence Visa: If unable to travel back to your country of residence to apply.

Undesirable Persons and Visa Appeals

If declared an undesirable person and banned from South Africa, you must apply to have your name cleared before returning. For more context, refer to my article, “What is the penalty for overstaying in South Africa.” If your visa is rejected, you will need to go through the visa appeal process in South Africa.

How to Get a Waiver Letter in South Africa

Option 1: Write the Letter Yourself

You can write the waiver letter yourself and include it in your application. Here’s how:

• Use formal language.

• Choose your words wisely.

• Acknowledge the reader and thank them for their time.

• Proofread your letter.

When detailing your reasons for the waiver, ensure they are valid, stick to the facts, avoid irrelevant topics, steer clear of complaints, and ensure your letter is easy to understand.

Option 2: Use an Immigration Consultant

An immigration consultant can handle everything for you. They have experience with applications and numerous waiver templates. They understand the process and know how to draft the letter for you to maximize your chances with the Department of Home Affairs. The cost varies depending on whether you use an immigration consultant or lawyer.

How Long Does a Waiver Take to Get Approved?

The waiver process in South Africa can take 7-12 months, so apply before your visa expires. You must have valid temporary residence or status in South Africa to apply. Submit your waiver through VFS in South Africa, and schedule an appointment on their website to submit your application.

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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.
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Home Affairs is appealing an interdict protecting ZEP holders

An interdict protecting ZEP holders is being challenged in the Supreme Court of Appeal. Archive photo: Tariro Washinyira

• The Supreme Court of Appeal will on Tuesday hear the Department of Home Affairs’ appeal against an interdict protecting ZEP holders.

• The interdict was granted in June 2023 in a case brought by the Zimbabwean Immigration Federation (ZIF).

• Home Affairs argues that the ZEP system was always meant to be temporary and that the minister could decide to end it.

• But the ZIF says that terminating the ZEP will cause irreparable harm to hundreds of thousands of people.

The legal saga over the Zimbabwean Exemption Permit (ZEP) returns to court on Tuesday as the Supreme Court of Appeal (SCA) hears the Department of Home Affairs’ appeal against a ruling that temporarily protected ZEP holders from arrest and deportation.

The interim interdict, granted in June 2023 in a case brought by the Zimbabwean Immigration Federation (ZIF), shielded all ZEP holders — about 178,000 people — while the legality of the permit system’s termination was being challenged.

The validity of the ZEP was last year extended to November 2025.

The Department of Home Affairs is asking the SCA to set aside the interim relief granted to the ZIF, effectively reinstating the department’s ability to enforce immigration laws against ZEP holders until the wider legal questions around the permits are resolved.

In its court papers, the Department of Home Affairs argues that the matter should be considered moot because there’s already a separate high court ruling, in a case brought by the Helen Suzman Foundation, that declared the minister’s decision to end the ZEP system unlawful and set it aside. The department is also appealing that ruling.

According to the department, the permits were always meant to be temporary and subject to the minister’s discretion. It argues that requiring the minister to maintain the ZEPs until Zimbabwe’s economic conditions improve would amount to an indefinite obligation not supported by the law.

In response, the ZIF argues that the department’s appeal fails to take into account the severe human consequences of terminating the ZEP system. These consequences go to the heart of constitutional rights and cannot simply be brushed aside.

The ZIF argues that it is common cause and undisputed that “ZEP holders would likely be deported in the absence of an interdict preventing such deportation” and that “for ZEP holders that are married to South Africans there would be a breakup of families in violation of their rights to family life and dignity.”

They contend that even without deportations, the sudden shift from lawful residency to undocumented status strips permit holders of basic protections. It places jobs, access to education and family stability at risk and opens people to the daily threat of arrest, harassment, or detention.

ZEP holders face irreversible harm, the ZIF argues. Many would not qualify for any other visa, despite having lived, worked, and built families and businesses in South Africa for over a decade.

These are not hypothetical concerns, they say. When the ZEP system was initially terminated, thousands of people were left scrambling to apply for exemptions they were unlikely to qualify for, with no realistic chance of their applications being finalised in time. That uncertainty continues to this day and remains a real and ongoing threat to livelihoods, safety, and dignity.

They claim the department relies on technical arguments to justify ignoring these impacts, but that doesn’t excuse the abrupt and damaging way the policy was ended or the lack of meaningful alternatives for those affected.

The ZIF also rejects the department’s claim that ZEP holders could have applied for other visas instead of relying on court protection. They argue that these alternatives were either unavailable, impractical, or too slow.

The ZEP scheme was created precisely because most permit holders did not qualify for mainstream visas and the department admitted as much in its own court filings, they argue.

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
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