What is a Ministerial Waiver / Exemption and how does it work
Upon application to the Minister of Home Affairs, the Minister may under terms
and conditions determined by him or her allow distinguished visitors or members
of his/her family to be administered and sojourn in South Africa and or waive
any prescribed (regulatory) requirements for good cause and/or grant any
foreigner or category of foreigners the rights of permanent residence for a specified
or unspecified period when special circumstances
exist justifying such a decision.
S 31(2)(b) provides that the Minister may, upon
application, grant a foreigner or a category of foreigners the right of
permanent residence for a specified or unspecified period, when special
circumstances exist justifying such a decision. The Minister may also exclude a
foreigner or a group of ‘identified’ foreigners from such dispensation and may,
for good cause, withdraw such right(s) from a foreigner or a category of
foreigners. S 31(2)(c) provides that the Minister may for ‘good cause’ waive
any prescribed requirement or form, in respect of any such application by a
foreigner for the grant of permanent residence.
There are a myriad of circumstances that may arise
wherein an applicant may apply to the Minister of Home Affairs to grant certain
concessions in terms of section 31(2)(b) or under 31(2)(c) under the
Immigration Act (the “Act”) that may pertain either to the acquisition of
permanent residence “when special circumstances exist” or “for good cause,
waive any prescribed requirement or form”.
The Minister is empowered in terms of the
Immigration Act to “waive” any regulatory requirement or form. A foreigner may
apply for such waiver on the basis that “good cause” exists for the granting of
such waiver.
The term “good cause” has never been defined,
either in terms of legislation or by the South African judiciary. In practical
terms an applicant must demonstrate that there is compelling justification for
the waiving of a regulatory requirement or form, and if the Department of Home
Affairs (on behalf of the Minister) determines that a violation of a
constitutional right, or an irrational consequence, will arise by a refusal to
grant such waiver, waivers are normally granted.
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