South African Visa Options for ZEP Holders

We have received a huge number of enquiries from Zimbabwean Nationals with Zimbabwean Exemption Permits. The Department of Home Affairs announced that the ZEP would not be extended again and that there would be a 12-month grace period for applicants to apply for other permits appropriate to their particular status or situation.

  1. General work visa:

The first step to obtaining a General Work Visa is obtaining a certificate from the Department of Labour confirming;

  1. despite diligent search, the prospective employer has been unable to find a suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant;
  2. the applicant has qualifications or proven skills and experience in line with the job offer;
  3. the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or employees occupying similar positions in the Republic;
  4. a contract of employment stipulating the conditions of employment and signed by both the employer and the applicant in line with the labour standards in the Republic and is made conditional upon the general work visa being approved;

Unless the applicant has a very rare skill, supported by a formal qualification and many years of experience, it is highly unlikely that they will be able to get past the first requirement. Only once the applicant has the labour certificate, can they submit their application for a general work visa at VFS.

  1. Critical skills visa:

The Department of Home Affairs eventually gazetted the much-anticipated revised critical skills list on 2nd February 2022. Only 101 roles made the final list, with the majority requiring advanced diplomas or degrees to qualify. Please see the link below

Gazetted_Critical_Skills_List_2022-compressed.pdf (

       To qualify for a critical skills visa the applicant needs:

  1. Relevant minimum qualifications for the roles as defined on the gazette list
  2. Be able to meet the minimum requirements of the particular professional body associated with each role
  3. Have a permanent job offer in that particular role

For applicants that qualify, this is a great option, as they would be able to apply for permanent residency, as soon as their critical skills visa is issued.

  1. Life partner/spousal visa:

 This may be an option for applicants who are in an exclusive relationship with a South Africa and are able to prove that they have been in a relationship for at least two years. They will need to be able to prove that they have been in an exclusive relationship, have been cohabitating, and share mutual financial responsibilities. That may sound simple enough but providing solid evidence to satisfy the DHA isn’t always so easy. We usually recommend documentation such as joint leases, confirmation of access to each other’s bank account and joint insurance/medical policies.

Applicants that have a registered business or a permanent job, can apply for a work endorsement to be added to their visa. This endorsement limits them to only working for the company specified on their visa. Should they change employers, they will need to apply for a change of condition.

Successful applicants can then go on to apply for permanent residency if they can demonstrate that they have been together for 5 years.

  1. Business visa:

While many Zimbabweans have registered business in South Africa, the majority will not qualify for a business visa, as the required minimum for most industries is R5 million.

The capital requirements above may be reduced or waived in respect of the following types of industries/businesses:

  1. Information and Communication Technology
  2. Clothing and textile manufacturing
  3. Chemicals and bio-technology
  4. Agro-processing
  5. Metals and minerals refinement
  6. Automotive manufacturing
  7. Tourism
  8. Crafts

Applicants will also be required to submit their business plan to the Department of Trade and Industry so that they can obtain the required letter of recommendation from the regarding-

  1. The feasibility of the business; and
  2. The contribution to the national interest of the Republic
  1. Study visa:

This is unfortunately the only possible option, for many of the applicants that have contacted us. To qualify for a study visa, applicants need to be accepted to study at a SAQA registered training institution. Applicants are permitted to work on a part-time basis (max 20 hours per week) on a study visa, so they can gain some practical experience in their chosen field. It is important to note, that study visas are only issued for the duration of the course and there is no automatic option to remain in South Africa at the end of their studies. This can be a useful option for applicants in a relationship with a South African that need time to build up sufficient evidence of their relationship.

Our recommendation to many applicants that wish to remain in South Africa indefinitely, is to study towards as skill on the critical skills list, mentioned above, as they would have a clear path to being able to qualify for permanent residency. They would need to be able to meet all the requirements of the critical skills visa by the time they qualify, so it is vital that they do proper research.

Unfortunately, in terms of the current South African Immigration legislation, many Zimbabweans, even those that have been in South Africa for many years, do not qualify for any of the above-mentioned visas. There are many NGOs doing great work trying to find alternative solutions. The Scalabrini Centre is one such organization and is gathering Zimbabwe Exemption Permit information to assist in our advocacy work seeking documentation solutions. I would suggest that all the Zep holders register with them

 ZEP Holder Information for Scalabrini Centre Advocacy (


After many months of waiting, the Department of Home Affairs finally gazetted the new Critical Skills list for South Africa on 2nd February 2022.

The Department of Home Affairs appears to have gone through an engagement and evaluation process. The full details of the assessment process are available for those who may be interested 2022-Technical-Report-Finalisation-of-the-Critical-Skills-List-compressed.pdf (

Important things to note:

  1. The list has been reduced to only 101 roles. Many of the roles on the previous list have been excluded. Many of the roles that were on the draft list have been excluded, and in some cases, whole industries have been excluded.
  2. The descriptions have been more clearly defined.
  3. The qualification requirements have been defined at a NQF level.
  4. The revised list applies with immediate effect.

Link here to view the gazetted critical skills list

Gazetted_Critical_Skills_List_2022-compressed.pdf (

While we welcome the clarity that the gazetted list provides, we know that many of our clients who currently hold critical skills visas will no longer be eligible when their current visas expire. 

The gazetted list further limits the immigration options for many Zimbabwean applicants seeking alternatives to the Zimbabwe Exemption Permit.


Statement by the Minister of Home Affairs regarding the reopening of borders and services during Alert Level 1

30 September 2020

All 18 land ports of entry will be opened with effect from 1 October 2020. The other 35 land ports of entry remain closed.

The Department of Home Affairs is extending the validity period of legally issued visas which expired during the lockdown period to 31 January 2021.

Holders of such visas are permitted to remain in the country under the conditions of their visas until 31 January 2021. Those wishing to be repatriated to their countries within this period can depart without being declared undesirable persons.

The Department is also resuming services for applications for identity cards or documents and for all types of passports.

Visa services, including submission of applications through VFS Global, will also resume in the following categories:

  • Visitor’s visas;
  • study visa;
  • treaty visa;
  • business visa;
  • crew visa;
  • medical treatment visa;
  • relative’s visa;
  • general work visa;
  • critical skills work visa;
  • intra-company transfer work visa;
  • retired person visa;
  • corporate visa;
  • exchange visa;
  • waiver of prescribed requirement, as contemplated in section 31(2)(c); and
  • appeals or reviews contemplated in section 8 of the Immigration Act.

Some of these services will also be available through our Missions abroad.

Any person from a country listed as having a high COVID-19 infection and transmission rate, who wish to undertake a business travel into South Africa, maywith effect from 01 October 2020, in writing, apply to the Minister of Home Affairs and demonstrate reasons for their request to enter the Republic for business purposes during the period of the national state of disaster.

Such applications must be directed to email and supported by:

  1. a copy of passport and/or temporary residence visa;
  2. ​proof of business activities to be undertaken in the Republic;  
  3. proof of travel itinerary; and
  4. proof of address or accommodation in the Republic.

We need to remind our people that the fact that we are at level 1 lockdown, does not mean that the Covid-19 pandemic is over. We still have to take precautions, and some of them, might be very hard decisions to make. But this will be done in such a way that it strikes a balance between saving lives and livelihoods.

In this regard, the opening of international travel will follow a Risk Adjusted Approach. Earlier today, a list of high risk countries was read at a Press Conference. Unfortunately this list was not exhaustive, and might also have included some countries by mistake. We are hereby releasing the whole updated list, and we heartily apologize for any confusion and any inconvenience caused by the earlier release:

  • Albania ​​​
  • Argentina
  • Armenia
  • Austria
  • Bahrain
  • Belgium
  • Bolivia
  • Bosnia and Herzegovina
  • Brazil ​​​ ​​​​
  • Chile
  • ​​​Columbia
  • Costa Rica
  • Croatia 
  • Czech Republic
  • Denmark
  • Ecuador
  • France​​​
  • Georgia ​
  • Greece
  • Guatemala ​
  • Guyana​​​
  • Honduras
  • Hungary
  • Iceland
  • India
  • Iran
  • ​​​Iraq
  • Ireland
  • Israel
  • Jamaica
  • Jordan
  • Kuwait
  • Lebanon
  • Luxemburg ​​
  • Maldives
  • Malta
  • Mexico
  • Moldova
  • Montenegro ​​​
  • Nepal ​​
  • Netherlands 
  • North Macedonia
  • Oman
  • Palestine
  • Panama
  • Paraguay
  • Peru ​​​
  • Portugal
  • Puerto Rico
  • Qatar
  • Romania
  • Russia
  • Slovakia
  • Suriname
  • Switzerland
  • Ukraine
  • ​​​United Emirates
  • United Kingdom              ​
  • USA
  • Venezuela​

We need to emphasize once more that people who are not allowed from these high risk countries are leisure travellers only. Other categories of people from these countries, are allowed under special conditions, as appears in the Regulations and Directions.

The above list will be reviewed every fortnight.

Statement by Home Affairs Minister Dr Aaron Motsoaledi outlining additional services which resumed during Alert Level 2 of the Lockdown

28 August 2020 

My colleague, Deputy Minister, Honourable Mr Njabulo Nzuza

Home Affairs Acting Director General Mr Jackson Mckay

Home Affairs Deputy Director General for Civic Services Mr Thomas Sigama

Members of the media

Fellow citizens

Good morning and thank you for making time to engage with us as we outline services which are offered by the Department of Home Affairs (DHA) under Alert Level 2 of the lockdown. The services resumed on 26 August 2020 after the Directions authorising the provision of these services was gazetted.

The Deputy Minister and I work closely with the Department to constantly review the services which can be resumed safely in line with the Disaster Regulations and health protocols in place.

As a way of balancing the need to offer critical enabling documents to citizens, Directions providing for the following additional services was issued on Tuesday, 25 August 2020:

● All Temporary Identity Certificates issued during the period of the National State of Disaster that have not yet expired on the date of commencement of this Directions, are hereby extended up to 31 October 2020;

● Applications for Identity Cards or Green Barcoded Identity Documents by persons who have been issued with a Temporary Identity Certificate during the National State of Disaster, which certificates have expired;

● Applications for first issue of Identity Card or Green Barcoded Identity Document;

● Applications for amendments of personal particulars;

● Applications for rectification of personal particulars.

In the period between 27 March 2020 and 21 August 2020, the Department issued 347 787 Temporary ID Certificates. Gauteng accounted for most of these TICs and has issued 92 597.

Of the total issued TICs, 65 129 have expired. Holders of these expired TICs are now eligible to apply for Smart IDs. The validity period of remaining 282 658 TICs has been extended to 31 October 2020.

On average, the Department processes one million first time applications a year, mostly from learners. The Department has received a report from the Department of Basic Education indicating that there are 637 767 learners who do not have IDs.

The Deputy Minister is leading the initiative of ensuring that learners are issued with their IDs. He will provide more details on this important work.

On average, 4 000 people a month visit our offices for amendments and rectification of personal particulars.

South Africans who are abroad and need to return to SA can apply for emergency passports.

The Department, in partnership with the banks which participate in the online system for smart ID card and passport applications has opened for collections for clients who had applied for these documents before the lockdown. This service will only be provided on Mondays, Wednesdays and Fridays during the banks’ operating hours.

People who had applied for these documents before 26 March 2020, which is the lockdown’s starting date, may collect their smart ID cards and/or passports from their selected bank branches.

Bank branches that will be re-opening for collection of smart ID cards and passports, are the following:

  1. Absa Greenacres, Port Elizabeth 
  2. Absa Sandton City 
  3. Absa Towers, Johannesburg 
  4. Absa Lifestyle, Centurion
  5. FNB Lifestyle, Centurion 
  6. FNB Menlyn, Pretoria
  7. FNB Merchant, Sandton 
  8. FNB Portside, Cape Town
  9. Investec Bank Sandton 
  10. Nedbank Arcadia 
  11. Nedbank Constantia Kloof, Roodepoort
  12. Nedbank Rivonia
  13. Nedbank Nelspruit 
  14. Nedbank St Georges Mall, Cape Town 
  15. Standard Bank Simmonds Street
  16. Standard Bank Canal Walk, Cape Town 
  17. Standard Bank Killarney Mall
  18. Standard Bank Centurion Lifestyle 
  19. Standard Bank Kingsmead, Durban
  20. Standard Bank Jubilee Mall, Hammanskraal 

The eHomeAffairs portal remains deactivated as new applications are still not accepted in the current level of the lockdown.

The refugee reception offices and borders throughout the county remain closed. VFS offices are open only by appointment for collection of outcomes on applications which were made before the lockdown.

During each lockdown level, we analyse the numbers of people who normally visit our offices and determine which services we can offer safely. At all time, we aim to protect the lives of our employees and citizens while ensuring access to essential services. In reality, the pandemic is still with us and we want to keep the numbers of people who could be exposed to the virus in our offices to a bare minimum.

Even when the world paused during Level 5 of the lockdown, Home Affairs didn’t. We couldn’t. Our people needed our services to adjust to the new normal. We kept going within the limitations caused by the Covid 19 regulations. Since the beginning of the lockdown until 21 August 2020, our committed and dedicated staff assisted more than 1.6 million people who visited our offices with crucial enabling documents.

We assisted people with the following services;

● 181 492 re-issue of replacement birth certificates,

● 198 846 death registrations

● 347 787 Temporary ID Certificates, as indicated earlier

● 366 988 birth registrations

● 318 812 IDs and

● 195 474 passports, mostly for people involved in essential services 

From the beginning of the lockdown on 27 March 2020 until Wednesday, 26 August 2020, our immigration officials assisted 839 004 people to cross our borders under the permissible conditions. Most of these people were foreign nationals who were returning to their countries and South Africans who were returning home, to South Africa. Some of these South Africans have since returned to their base countries. Other people who were assisted include those who were travelling for emergency medical evacuations.

As we resume more services, I urge everyone who will be visiting our offices and our partner banks to observe health protocols aimed at combating the spread COVID-19. They must wear face masks, maintain social distancing and adhere to all other applicable regulations. The banks had undertaken to continue doing all in their powers to protect staff and clients.

The Directions can be accessed via the following links:

‬‬‬Thank you


Home Affairs Minister Dr Aaron Motsoaledi extends the validity of visas which expired during the lockdown and calls for public comment into the draft South African Citizenship Act Regulations

The Minister of Home Affairs, Dr Aaron Motsoaledi, issued Directions, in line with the National State of Disaster Regulations, extending the validity period of legally issued visas which expired during the lockdown period to 31 October 2020.

The Directions extend the initial validity period from 31 July 2020 to 31 October 2020. This means that lawfully issued visas which expired from 15 February and during the period of the lockdown are deemed to be valid until the end of October 2020.

Holders of such visas are permitted to remain in the country under the conditions of their visas until 31 October 2020. Those wishing to be repatriated to their countries within this period can depart without being declared undesirable persons.

The refugee reception offices throughout the county remain closed. VFS offices are open only by appointment for collection of outcomes on applications which were made before the lockdown.

Minister Motsoaledi is also inviting the public and stakeholders to make written comments on the South African Citizenship Act Draft Amendment Regulations published on 24 July 2020 in the Gazette.

The Draft Regulations relate to Sections 4 (3) and 5 (1) of the South African Citizenship Act. The Amendment Sections were passed by Parliament in 2010 and came into operation on 1 January 2013.

Passport Stamps


The Department of Home Affairs wishes to outline temporary measures which are in place to address immigration matters during the lockdown period.

The temporary measures were introduced after President Cyril Ramaphosa declared a national state of disaster on 15 March 2020 and, subsequently, a national lockdown from 27 March, extended until end of April 2020, to contain the spread of COVID-19.

Visa concessions listed below apply to those with visas which expired from 15 February 2020, unless a person has proof that he/she had already submitted an application for a visa extension prior to 15 February 2020 and the outcome is pending.

These temporary measures will remain valid until 31 July 2020 unless extended officially by the Department. They apply only to foreign nationals who have been legally admitted into the Republic.

The visa concessions are contained in the Directions which have been issued by the Department in terms of the Disaster Management Act, 2002.

Holders of temporary residence visas which expired from mid February 2020, who did not renew their visas before the lockdown, will not be declared illegal or prohibited persons.

Any person whose visa expired before or during the lockdown will not be arrested or detained for holding an expired visa.

Those who opt to return to their countries of origin or residence after the lockdown instead of renewing their visas will not be declared undesirable upon departure.


During the lockdown, the Department is not receiving or adjudicating applications for visas and for permanent residence permits.

Foreign nationals whose visas expired after 15 February 2020 may reapply for their respective visas or relevant visa exemptions while in the Republic immediately after the lockdown has been lifted. They will not be required to apply for authorisation to remain in the country (Good Cause/ Form 20).

Foreign nationals whose visas expired after 15 February 2020 who had scheduled appointments on dates which fall within the lockdown period should reschedule their appointments to an available date after the lockdown has been lifted.


People whose visa expired during the lockdown and those who have submitted their applications before the lockdown but their applications are still pending, will be allowed to work, study or conduct business after the lockdown while waiting for the outcome of their applications.


Visas issued to nationals of high risk countries who were outside the Republic on 15 March 2020 were revoked as per the Directions issued by the Department in terms of the Disaster Management Act, 2002. These visas remain revoked.

During the lockdown, except for cases relating to expatriation initiated by another state, all foreign nationals who are currently in South Africa may not depart.


Holders of the Lesotho Special Permit have up to 15 June 2020 to submit their applications for the Lesotho Exemption Permit. The Lesotho Special Permits which expired on 31 December 2019 remain valid until 15 June 2020. No new applications will be taken.


Any asylum seeker whose visa expired from 16 March 2020 to the end of the lockdown period will not be penalised or arrested provided that they legalise their visa within 30 calendar days of the lockdown being lifted.


Minister Aaron Motsoaledi welcomes the passing of the Border Management Authority Bill by the National Assembly

Home Affairs Minister Dr Aaron Motsoaledi welcomes the passing of the Border Management Authority (BMA) Bill by the National Assembly in Parliament on 03 March 2020. “The BMA Bill is long overdue. I welcome the passing of the Bill by the National Assembly. The BMA will enable the country to manage its borders in a manner that facilitates trade and plugs holes in our porous borders. These porous borders lead to, amongst others, illegal crossing of people, illicit goods, drugs, trafficking of people, particularly of women and children, and stolen vehicles,” said Minister Motsoaledi. The BMA will also simplify the management of border posts or official gates of entry as it will streamline the red tape at the border posts by establishing one command structure covering the responsibilities of up to eight different government agencies which are currently operating in the border environment. Minister Motsoaledi said that the Department has been preparing for the implementation of the BMA through the Project Management Office. This Project Management Office has been working with other government departments and agencies to ensure its speedy implementation.



Case CCT114/18 
[2019] ZACC 24

 Date of Hearing:  21 February 2019
Judgement Date:28 June 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 28 June 2019 at 10h00, the Constitutional Court handed down judgment in an application for direct leave to appeal against a decision of the High Court, Western Cape Division, Cape Town (High Court).  The applicants sought to have regulation 9(9)(a) of the Immigration Regulations declared unconstitutional on the basis that it limits the constitutional right to dignity by limiting the rights of persons to marry and cohabit, and the best interests of children by limiting their rights to family care.

This matter involved two different family units, each of which comprises a foreign spouse who is married to or is in a life partnership with a South African citizen or permanent resident.  The first applicant, Ms Nandutu, is a Ugandan citizen who resides with and is married to the second applicant, Mr Tomlinson, a South African permanent resident.  The third applicant, Mr Demerlis, is a Greek citizen, who resides with and is in a life partnership with the fourth applicant, Mr Ttofalli, a South African citizen.

Ms Nandutu entered South Africa on a temporary visitor’s visa that was issued under section 11(1) of the Immigration Act (Act).  At the time of entering South Africa, she was pregnant with Mr Tomlinson’s child.  Several months later, Ms Nandutu married Mr Tomlinson and gave birth to their son.  In order to be able to remain in South Africa with her husband and son, Ms Nandutu applied for a “spousal visa” under section 11(6) of the Act.  Her application was rejected on the basis that in terms of section 10(6) of the Act, temporary visa holders are not able to apply for a change in visa status from within South Africa, and must make those applications from outside South Africa.  Mr Demerlis’ application for a spousal visa was also rejected on similar grounds.  She and Mr Demerlis could not even be accommodated under exceptions that make it possible for visa holders to apply for a change in visa status from within South Africa.  That was because the exceptions did not cover their situation.  The exceptions are contained in regulation 9(9)(a) of the Immigration Regulations.

The applicants approached the High Court to have regulation 9(9)(a) declared inconsistent with the Constitution.  The applicants argued that the lack of an exception that catered for holders of visitors’ visas who are spouses or children of South African citizens or permanent residents limited their constitutional right to dignity.  The High Court held that regulation 9(9)(a) did not infringe the right to dignity and was reasonably capable of being read consistently with the Constitution.  It thus dismissed the application.  Aggrieved by the High Court’s finding, the applicants applied for leave to appeal directly to the Constitutional Court.

The main issue before the Constitutional Court was whether regulation 9(9)(a) is constitutionally invalid to the extent that it does not extend “exceptional circumstances” to include “where the applicant is a foreign spouse or child of a South African citizen or permanent resident”.  The Minister and Director-General of the Department of Home Affairs opposed the application. They argued that regulation 9(9)(a) is connected to a reasonable and rational government purpose.  They also argued that the provision is not constitutionally invalid, as the applicants and persons in their position were able to apply directly to the Minister, under section 31(2)(c) of the Act, to waive the requirement to apply for a change in visa status from outside South Africa.

The majority judgment, penned by Mhlantla J and concurred in by Cameron J, Jafta J, Khampepe J, Madlanga J, Nicholls AJ and Theron J, allowed the applicants to appeal directly to the Constitutional Court.  The majority declared regulation 9(9)(a) invalid and inconsistent with the Constitution, in that it unjustifiably limits the constitutional right to dignity and the right that a child’s best interests are paramount in every matter concerning the child.  The majority relied on the Constitutional Court’s previous judgment in Dawood.  In that case, the Court dealt with a legislative regime that required foreign spouses to have valid temporary residence permits in order to apply for immigration permits that would allow them to reside permanently in South Africa.  The legislation required that an applicant be outside the country at the time of the grant of an immigration permit.  The legislation also created an exception to this in relation to, amongst others, spouses and dependent children.  An applicant also had to be the holder of a valid temporary residence permit right up to the time of the grant of the immigration permit.  A difficulty arose from the fact that the issuing of this temporary residence permit was subject to the exercise of a discretion by immigration officials.  And this the Court held to be unconstitutional as there was no legislative guidance on how the discretion was to be exercised.  Also, the Court held the entire regime to be constitutionally invalid, as it unjustifiably limited the right to dignity by creating an onerous burden on families who would have to separate as a result.  This, the Court found, created practical and physical barriers to the enjoyment of one’s familial rights (and, by extension, one’s human dignity), and also obstructed a spouse’s ability to carry out fundamental aspects of their spousal obligations and the ability to live together.  Relying on this Dawood holding, the majority in this matter concluded that regulation 9(9)(a) limited the right to dignity and right that a child’s best interests are paramount in every matter concerning the child.  The majority further held that the first and second respondents had failed to show that this limitation was reasonable or justifiable.

In respect of remedy, the majority held that an order suspending the constitutional invalidity of the regulation, coupled with an interim reading-in, was appropriate.  The majority reasoned that this remedy provides immediate relief to the applicants and those in similar positions, whilst respecting the separation of powers by granting the Legislature an opportunity to cure the invalidity.  Accordingly, the majority declared regulation 9(9)(a) constitutionally invalid, suspended the declaration of invalidity for 24 months and ordered a reading-in on an interim basis of words that have the effect of adding to the exceptions under the regulation spouses or children of South African citizens or permanent residents.  The effect of this reading-in was that, during the period of suspension, spouses or children of South African citizens or permanent residents would not have to depart from South Africa when applying for a change in visa status.

The minority judgment, penned by Froneman J and concurred in by Mogoeng CJ and Ledwaba AJ, differed on the interpretation of Dawood, finding that it had limited application in this matter as it centered on the lack of a guided discretion in deciding when to grant temporary visas.  Section 21(3) of the Constitution provides that “[e]very citizen has the right to enter, to remain in and to reside anywhere in the Republic”.  Non-citizens do not have a constitutional claim to enter, remain and reside in South Africa and, when they visit the country, visitors cannot legitimately expect to be granted those rights in the absence of cogent information that they may be endangered or prejudiced by a policy requiring them to return home.  The minority would have thus dismissed the appeal.

The Full judgment  here

Passport stamps in macro, featuring close-up of "immigration" stamp.


Case CCT273/17
[2018] ZACC 39

Hearing Date: 15 May 2018
Judgement Date: 09 October 2018

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 9 October 2018, at 10h00, the Constitutional Court handed down judgment in the application for leave to appeal against an order of the Supreme Court of Appeal (SCA). The SCA overturned a decision of the High Court of South Africa, Western Cape Division, Cape Town (High Court) which declared the Immigration Directive 21 of 2015 (the Directive) issued by the Department of Home Affairs inconsistent with the Constitution, invalid and set it aside.

In 2008 the Director-General of Home Affairs issued Circular 10 of 2008 (the Circular) which confirmed a court order to the effect that asylum seekers and refugees, in terms of the Refugees Act 130 of 1998, were allowed to apply for visas or permits under the Immigration Act 13 of 2002. The Circular was withdrawn in February 2016 when the Directive was issued.

The first applicant, Mr Tashriq Ahmed, was an attorney specialising in immigration law and the legal representative of the second to fourth applicants, Ms Fahme, Mr Swinda, and Mr J Ahmed respectively, who were all asylum seekers who had made applications for asylum in terms of the Refugees Act. Their applications for asylum were denied. Ms Fahme attempted to apply, under the Immigration Act, for a visitor’s visa as her spouse and children were legally in South Africa; however an official of the Department of Home Affairs (the Department) refused to accept her application, citing the Directive as the reason. Mr Swinda and Mr J Ahmed both applied, under the Immigration Act, for critical skills visas, and both applications were declined.

The applicants approached the High Court seeking an order declaring the Directive inconsistent with the Constitution and to have it set aside. The High Court, on 21 September 2016, handed down judgment and held that the Directive was arbitrary and liable to be set it aside as it was irrational and not borne out of a proper interpretation of the provisions in the context of the two Acts as a whole. With regard to Ms Fahme, the Court held that her right to dignity had been violated. In respect of Mr Swinda and Mr Ahmed, the Court held that it could find no reason why an unsuccessful asylum seeker should be barred from applying for temporary work rights if they met the requirements and that this interpretation better promotes the objects and purposes of the Immigration Act.

Dissatisfied with the outcome, the respondents approached the SCA. On 26 September 2017, the SCA held that the High Court had erred in its interpretation of the Immigration Act and that an application for a visa by a foreigner must be made outside the Republic and not within South Africa. The SCA held that the High Court’s conclusion was based on an erroneous interpretation of the Immigration Act and that asylum seekers are subject to the Refugees Act which is a separate regime to that of the Immigration Act. As such it upheld the appeal and the High Court order was set aside.

In this Court the applicants submitted that the provisions of the Immigration Act that relate to temporary and permanent residence permits referred only to “foreigners” and did not expressly exclude asylum seekers. The applicants averred that the fact that section 27(d) of the Immigration Act makes express provision for refugees to apply for permanent residence five years after their recognition as a refugee did not mean that an asylum seeker or a refugee may not be eligible for any other permit in terms of the Immigration Act. In addition, they argued that the Directive is unlawful as it is ultra vires (beyond its legal power or authority) and unjustifiably limited the right to dignity of asylum seekers with familial relations in the country

The respondents supported the conclusion of the SCA. The respondents submitted that the Directive was consistent with the legislative and regulatory framework of the Refugees Act and Immigration Act. They further contended that even if the Directive was invalid, the officials of the Department had no discretion to accept and consider applications made within the borders of the country.

In a unanimous judgment written by Theron J, the Constitutional Court confirmed the finding of the SCA that asylum seekers are subject to the requirement that applications for visas or permits must be made from outside the borders of the country, and as Ms Fahme, Mr Swinda, and Mr J Ahmed did not apply for exemption from this requirement, they were not entitled to make such an application inside the country.

The SCA did not consider the validity of the Directive. This Court, while not making a finding on the nature and status of the Directive, held that the fact that the Directive is treated as binding by the people tasked to implement it, is sufficient for this Court to make a determination on whether the Directive is ultra vires and thus invalid.

This Court held that to the extent that the Directive prohibited the second applicant, and similarly placed asylum seekers from applying for permanent residence permits while inside the Republic of South Africa, it was declared inconsistent with Regulation 23 of the Immigration Regulations, 2014 and invalid. The Court further held that, to the extent that the Directive imposed a blanket ban on asylum seekers from applying for temporary residence visas without provision for an exemption application under section 31(2)(c), it was inconsistent with the Immigration Act and invalid.            

The Full judgment  here.