The short answer
You shouldn't be discriminated against because of your HIV status.
The whole question
I live in South Africa on a Retired Person Visa. I need to know if Home Affairs will still be extending my visa as I'm now HIV infected. I'm married to a South African woman but she has almost no income, which means spousal visa won't be possible.
The long answer
Thank you for your email asking whether Home Affairs would extend your Retired Person’s Visa now that you have become HIV-positive. You say that although you are married to a South African woman you don’t think the spousal visa will be possible as she has hardly any income.
To begin with, the Constitution gives rights to all people to access basic health services, which include HIV/AIDS treatment. National health policy is that antiretroviral treatment is freely available to everyone in South Africa, irrespective of documentation, status or nationality.
The Constitution also protects the right to privacy and confidentiality. The National Health Act says that medical confidentiality may only be breached if a patient consents to the disclosure in writing; if a court or law requires the disclosure, or if non-disclosure represents a serious threat to public health.
The Promotion of Access to Information Act (PAIA) says that access to information or records can be refused if it amounts to an unreasonable disclosure of third party personal information. This means that where another person or institution requests health information, particularly HIV-related information, that information cannot be disclosed unless the person whose information it is, gives permission in writing for it to be made known.
According to the Home Affairs website, the diseases that must be excluded in terms of good health are “cholera, pestilence, yellow fever and any other diseases as determined by the Department of Health from time to time”. The required radiological report means you would also need to submit a recent chest XRAY to exclude TB.
There is no mention of HIV/AIDS. B. This would apply whether you wanted to extend your Retired Persons Visa or apply for a spousal visa.
The main
emphasis for Home Affairs when granting or extending a Retired Persons Visa
seems to be that the applicant has sufficient funds. I quote from Home Affairs:
“Proof that applicant has the right to a pension or irrevocable annuity or
retirement account which will give such foreigner a prescribed minimum payment
per month (R37 000) for the rest of his or her life, as determined from time to
time by the Minister, by notice in the Gazette or Proof that the applicant has
a minimum prescribed net worth per month (R37 000) realising from the
combination of assets, as determined from time to time by the Minister, by
notice in the Gazette.”
But because it’s hardly ever easy or straightforward when it comes to dealing with Home Affairs, you may want to approach the following organisations for advice and assistance
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.