South Africa’s immigration system is governed by the Immigration Act of 2002 and its subsidiary legislation. A nonresident alien may be admitted into South Africa only when issued one of the thirteen different types of temporary residence permits. Each kind of permit imposes a range of requirements.
A holder of temporary permit may apply for a permanent residence permit. A permanent residence permit may be issued on the basis of direct residency, which typically requires five years of residence and securing permanent employment, or a relationship with a citizen or permanent resident by affinity (including a homosexual relationship) or consanguinity. Permanent residence may also be granted on other grounds, such as possession of exceptional skills or qualifications, or business investment.
The immigration law mandates that all illegal foreigners be deported. It is an offence for employers to hire an illegal foreigner, for an educational institution to register an illegal foreigner for classes, for banking and other institutions to provide an illegal foreigner with certain services, and for private citizens to have any dealings with an illegal foreigner other than providing humanitarian assistance. Certain illegal foreigners may apply for status adjustment.
The South African citizenship system is controlled by the Citizenship Act of 1995 and its subsidiary legislation. South African citizenship may be acquired by birth, descent or naturalization. Citizenship by birth is acquired by anyone who has at least one South African parent; anyone born in South African to noncitizen parents but who does not hold or qualify for citizenship in another country; or anyone born to parents who are permanent residents and who has lived in South Africa from the time of his birth through the age of majority. Citizenship by naturalization is granted to an applicant who meets a host of requirements including an extended period of permanent residency and mastery of one of the country’s local languages.
Border protection and security in South Africa is a task shared by various government institutions including the South African National Defense Force (SANDF) and the South African Police Service (SAPS). The activities of the participating institutions is coordinated through the Border Control Operational Coordinating Committee (BCOCC).
Admission to South Africa
South Africa’s immigration system is controlled by the Immigration Act, the principal law, and its subsidiary legislation, the Immigration Regulations. An alien who is not a permanent resident in South Africa may be admitted to the country only if he or she is issued a valid temporary residence permit. South Africa has thirteen different temporary permit classes: visitor’s permit; study permit; treaty permit; business permit; crew permit; medical treatment permit; relative’s permit; work permit; retired person’s permit; corporate permit; exchange permit; asylum transit permit; and cross-border and transit permit. Visas are issued by the South African missions abroad, which are part of the Department of International Relations and Cooperation, and upon arrival in the country, immigration officials, who are part of the Department of Home Affairs, makes a determination on whether the person should be granted entry and for how long.
Different requirements apply to different permits. For instance, various requirements apply to the process for applying for and obtaining a work permit. There are four different subclasses of this type of permit: quota work permit; general work permit; exceptional skills work permit; and intracompany transfer work permit. All forms of work permit are issued to foreigners only if qualified citizens are not available for the relevant positions.
A quota work permit may be issued if an applicant falls into a professional category or occupational class determined by the Minister of Home Affairs. South Africa has instituted a plan known as the Accelerated and Shared Growth Initiative for South Africa (ASGI-SA) designed to boost the country’s economy through, among other things, the recruitment of skilled foreign workers in key sectors. The number of work permits issued annually for each category is capped. Currently, the country has 35,000 open positions in fifty-three different categories. To obtain a permit under this program a person must have an educational qualification in a specific identified category and a minimum of five years practical experience. Various additional requirements also apply.
A general work permit may be issued to a foreigner who does not meet the requirements under the quota work permit class. In order for a permit in this category to be issued, an employer must convince the Director-General of the Department of Home Affairs that
- he was not able to find a qualified citizen for the job;
- he plans to pay the applicant salary and benefits in accordance to the prevailing market; and
- he plans to notify the Director-General if the employment contract is terminated or the nature of the employment changes.
This permit expires with the termination of employment; however, in this instance, the holder of the permit may be granted up to nine months to get his affairs in order before he has to leave.
Exceptional Skills work permits are issued to persons with exceptional skills or qualifications and to members of their immediate families. These permits may be issued for three-year terms and the applicant is required to, among other things, submit proof of exceptional skills issued by a South African or foreign government organ or a South African academic, cultural or business body. Additional requirements apply.
Subject to applicable requirements, an intracompany transfer work permit is issued to a foreigner employed by a company that operates in South Africa and whose employment requires him to work in South Africa for a maximum of two years. Additional requirements are applicable.
Permanent residence permits may be issued for one of two possible grounds. The first ground is that of direct residence. An applicant for this category of permit must meet at least one of the following requirements:
- he has held a temporary residence permit for at least five years and has secured permanent employment;
- he has been in a marriage/customary union/permanent homosexual relationship with a citizen or holder of a permanent residence permit for five years. The permit is revoked if the relationship terminates within two years of the issuance of the permit except when the cause for termination is death;
- he is under twenty-one years of age and a child of a citizen or a permanent resident. In this case the permit would expire upon the child reaching the age of twenty-one and failing to apply for confirmation; or
- he is a child of a citizen.
A permanent residence permit may also be issued
- based on an offer of permanent employment (the job must be one which could not be filled by a citizen and must fall within the applicable available quotas issued for each sector annually);
- based on extraordinary skill and qualifications;
- based on a business investment (the person must have at least South African Rand (ZAR) 2.5 million (around US$285,000) in cash or capital contribution or a combination of both);
- to a refugee;
- to a person wishing to retire in South Africa (the person must have at least ZAR20,000 (around US$2,278) monthly income for life);
- to an applicant with a net worth of at least ZAR 7.5 million (around US$854, 000); or
- to a relative of a citizen or a permanent resident.
Additional requirements are applicable and a permanent residence permit may be terminated for various reasons, including conviction for certain crimes, failure to comply with the terms of the permit, or prolonged absence from the country.
Foreigners who are in South Africa in contravention of the Immigration Act are deemed to be illegal foreigners and the law mandates that they be deported. An immigration officer may arrest an illegal foreigner and has a legal obligation to deport illegal foreigners whether or not they have been arrested. An immigration officer may detain an illegal foreigner pending deportation. While the immigration officer may arrest an illegal foreigner without a warrant, a warrant is required for detention and deportation. There are additional applicable due process requirements that must be met before an illegal foreigner can be deported.
Certain illegal foreigners may seek status adjustment. An illegal foreigner whose permit has expired, but who has never been arrested for the purpose of deportation or ordered to depart South Africa may apply to the Director-General for authorization to remain in the country while seeking to adjust his status. This person is required to demonstrate that he failed to apply for status adjustment in time for reasons beyond his control and show that he is now able to do so. He may also be required to pay a deposit. As soon as a decision is made on the application for status adjustment, the Director-General’s authorization allowing the illegal foreigner to remain in South Africa pending the application process terminates; if the application is denied the illegal foreigner will have fourteen days to leave the country although this timeframe may be extended. If he does not, he is subject to deportation.
Employers are barred from hiring illegal foreigners as well as foreigners whose status does not allow them to seek employment or certain kinds of employment. Employers are duty-bound to check the status or citizenship of their employees and to make sure that they do not employ illegal foreigners. If an illegal foreigner is found in any business premises, the law presumes that he was employed by the business and the operator of the business shoulders the burden of proving otherwise. If proven (by means other than the legal presumption) that a business employed a foreigner not permitted to work, the employer would be presumed that he knew of the foreigner’s status unless he can prove that he employed the person in good faith and that he had made a good faith effort to ascertain the legal the status of the employee. Stricter compliance requirements are imposed on businesses that have more than five employees and employers who have a prior conviction for an offense under the Immigration Act.
Anyone who knowingly hires an illegal foreigner commits an offense and is, on conviction, subject to a fine or up to one year imprisonment. A second conviction is punishable by a fine or up to two years imprisonment, while a third conviction is subject to imprisonment of up to three years without the option of fines.
Learning institutions are prohibited from training illegal foreigners. If an illegal immigrant is found in the premises of a learning institution, the law presumes that he was there for training unless the person in charge of the institution can prove otherwise.
Banking and other financial institutions, real estate agents and insurance brokers, private hospitals and clinics, as well as employment agencies have the duty to inquire into the immigration or citizenship status of individuals and must report illegal foreigners to the Director-General’s office. However, this duty does not have a blanket application; it is limited to instances in which the customer seeks certain cervices. For instance, a bank’s duty is limited to instances in which the customer is seeking to secure loans and bonds, transfer money, or open a bank account other than an investment account. Similarly, a private hospital has the duty to check immigration or citizenship status only when admitting or registering a patient.
Individuals are also prohibited from aiding and abetting illegal foreigners. The law prohibits anyone from “aiding, abetting, assisting, enabling, or in any manner help[ing]” an illegal foreigner. This includes, but is not limited to, providing accommodation, letting or selling any real estate, or entering into an agreement to conduct business. There is a humanitarian aid exception.
A violation of the any of the above bans by any individuals or institutions constitutes an offence punishable on conviction by a fine or up to eighteen months imprisonment.
The acquisition of South African citizenship is governed by the 1995 Citizenship Act, the principal law, and its subsidiary legislation, the Citizenship Regulations. As in the case of the Immigration Act, the Minister and Department of Home Affairs administer the Citizenship Act. The Minister has wide discretionary powers on an array of issues including with regard to the granting of citizenship to a foreigner; however, all his decisions are subject to judicial oversight.
South African citizenship may be acquired by birth, descent, or naturalization. A person born in or outside of South Africa is a citizen by birth if at least one of his parents is a South African citizen. Anyone born in South Africa to non-South African citizens is a citizen by birth if he does not already have or qualify for citizenship of a foreign country and his birth has been duly registered in South Africa in accordance with the applicable law. In addition, anyone born in South Africa to parents who have been granted permanent residency permits qualifies for citizenship by birth if he has lived in the country from the time of his birth to the time of attaining the age of majority, and his birth has been duly registered in accordance to the applicable law.
A person adopted by a South African citizen in accordance with the applicable law and whose birth has been duly registered in accordance with the applicable law is a citizen by descent.
Finally, a person may apply for and acquire South African citizenship by naturalization if he meets a host of requirements. The Minister has the power to naturalize a foreigner applicant if the applicant can prove that
- he is not a minor;
- he is a permanent resident;
- he has been an ordinary resident in South Africa for ten years and has resided in the country for a continuous period of at least five years immediately preceding his application;
- he is a person of good moral character;
- he has mastered any one of the official languages in South Africa;
- he is from a country that allows dual citizenship, and if not, he has renounced his citizenship of the country in accordance with the applicable laws; and
- he has a satisfactory knowledge of the duties and responsibilities associated with South African citizenship.
If the applicant is married to a South African citizen, or was married to a citizen but was widowed, he must show that he has been lawfully admitted to South Africa for permanent residence and has ordinarily resided in the country for at least ten years during which he has been married to the South African citizen. Absence from South Africa for more than ninety days in the last five years immediately preceding the application precludes an applicant from eligibility to apply for citizenship.
An application for naturalization of children who are permanent and lawful residents in South Africa may be made by a parent or guardian. In addition, children born in South Africa to parents who are not citizens or who have not been granted permanent residency in South Africa may apply for naturalization upon reaching the age of majority. To qualify, an applicant in this class had to have lived in South Africa from the time of birth to the day of attaining the age of majority and his birth must have been registered in South Africa in accordance with the applicable laws.
Border Protection and Security
South Africa has vast borders and serious illegal immigration as well as crime problems. It has an extensive land border of about 4,864 Km (3,022.4 miles), which it shares with six countries—Mozambique, Zimbabwe, Botswana, Namibia, Lesotho, and Swaziland. Its maritime border is about 3,600 Km (2,236.9 miles) and extends 300 nautical miles to the open water. South Africa also has around 1,200 airfields, airstrips, and airports, which for the purpose of border policing are considered its air borders. In 2008, there were three to five million undocumented immigrants in the country. In addition, the border areas continue to experience a widespread crime problem including smuggling, stock theft, poaching, rape, and robbery.
Like many other issues, the question of border security in South Africa involves a painful history. During the apartheid era, the regime in the country had a strict border security program. The country’s land borders “were fortified with electric fences, regular army patrols and auxiliary civilian commando units.” However, the regime’s actions were not limited to efforts of keeping foreigners out; it was also directed at black South Africans. In 1985, “it installed 2,800-volt fences” to seal off some portions of its international borders (with Zimbabwe, Mozambique, and Lesotho) and borders with three of the ten homelands (Bophuthatswana, Transkei, and Venda), ethnicity-based structures established as states for black South Africans with the idea of carving out an all white South African republic.
In the post-apartheid era, South Africa sought to rectify this history in part by scaling back the involvement of the South African National Defense Force (SANDF), historically a key institution in ensuring border security. In 1994, the South African government put in place a policy for a gradual withdrawal of SANDF from the border areas. In 2003, President Thabo Mbeki’s administration instituted a policy in which the South African Police Service (SAPS) would take over the functions of SANDF over a five-year period with the final transfer of functions slated for 2009. By 2008, SAPS had completely taken over the task of securing the international borders with Namibia, Botswana, and Lesotho.
However, when it became clear that SAPS was poorly equipped to effectively secure the borders, in 2009, the South African government overturned its initial decision and ordered the SANDF to resume the function of border security. Since then, SANDF has been re-deploying soldiers along various parts of the country’s borders in phases with a plan to have fifteen companies deployed along the country’s land, maritime and air borders by 2015. Also part of the re-deployment are two platoons of engineers whose task it is to repair the apartheid-era razor fences that cover certain parts of the land border. By the time it finalizes its redeployment, SANDF is expected to “cover 4,471 Km (2,778.1 miles) of land border, 2,700 Km (1,677.7 miles) of maritime border, and 7,660 Km (4,759.7 miles) of air border.”
SANDF is not the sole government institution that deals with matters of border security. Various other government institutions also play key roles in border control and security including the National Departments of Home Affairs, Trade and Industry, Transportation, Health, Agriculture. Also key players are the National Police Service (SAPS) and the South African Revenue Service (SARS). The activities of all the institutions involved in border control and security are coordinated by the Border Control Operational Coordinating Committee (BCOCC)—part of the Justice, Crime Prevention and Security Cluster put in place in 2005 with the mandate to “strategically manage the South African border environment in a coordinated manner.” The BCOCC’s functions are designated as follows:
- Harmonise and implement legislative and policy frameworks
- Advise policy makers on the border environment
- Develop and implement a National Border Control and Security Strategy
- Develop and maintain PoE [port of entry], bases and borderline
- Coordinate securing of PoE, bases and borderline
- Improve legal flow of persons and goods through PoE
- Promote trade, tourism and development
- Coordinate law enforcement actions to combat illegal activities
- Compile and manage the budget for BCOCC strategies.
Each of the institutions involved plays a crucial role in border control and security. For instance, the Department of Home Affairs is the authority in charge of designating the ports of entry in the country and managing the entry and departure of persons. As such, as of 2010, the Department has put in place a sophisticated Movement Control System (MCS) designed both to facilitate the movement of South Africans and visitors in and out of the country, enhance security, and prevent the entry of illegal foreigners into South Africa. It has also reportedly taken steps recently to secure the place where and the manner in which passports are produced in an effort to curb illicit trade of falsified passports.
Foreign Law Specialist
 Immigration Act No. 13 of 2002, 15 Butterworths Statutes of the Republic of South Africa [BSRSA] (rev. through 2012). No online source for the current version of the Immigration Act was located. The text of the original Act can be found on the website of the South African government at http://www.info.gov.za/view/ DownloadFileAction?id=68047.
 Immigration Act, 2002, Regulations on Fees, No. R. 615, Government Notice [GN], No. 27725 (June 27, 2005), http://www.info.gov.za/view/DownloadFileAction?id=62823; and Immigration Act, 2002, Immigration Regulations (Immigration Regulations), No. R. 616 Government Gazette [GG], No. 27725 (June 27, 2005), http://www.info. gov.za/view/DownloadFileAction?id=62824.
 Immigration Act § 9.
 Id. §§ 11–24; Immigration Regulations §§ 9–21.
 Applying for South African Visa, Department of Home Affairs, http://www.home-affairs.gov.za/index. php/applying-for-sa-visa (last visited Feb. 14, 2013). If a person is granted entry, the visa would be considered a permit. Id.
 Immigration Act § 19.
 Types of Temporary Residence Permits, Department of Home Affairs, http://www.home-affairs.gov. za/index.php/types-of-temp-res-permits (last visited Feb. 14, 2013).
 Immigration Act § 19.
 Scarce Skills & Work Permit Quotas, Department of Home Affairs, http://www.home-affairs.gov.za/index.php/scarce-skills-work-quotas (last visited Feb. 14, 2013).
 Immigration Act § 19. For instance, in 2009, the year the latest quotas were published, 200 permits were allocated for chemical and material engineers, 1,000 for civil engineers, 150 for structural engineers, 2,000 for school teachers (Math, Science, Design and Technology specializations), and 250 for jewelry designers. Immigration Act, 2002 (Act No. 13 of 2002): Specific Professional Categories and Specific Occupational Classes, No. 605, GN, No. 32261 (May 25, 2009), available at the South African government portal, http://www.info.gov.za/view/DownloadFileAction?id=108168.
 Scarce Skills & Work Permit Quotas, Department of Home Affairs, supra note 10.
 Immigration Act § 19.
 Id.; Immigration Regulations § 16.
 Immigration Act § 19.
 Id. § 26.
 Id. § 27; Immigration Regulations § 23.
 Immigration Act § 28.
 Id. §§ 1 & 32. Certain foreigners are exempt from the list of illegal foreigners; these include members of a foreign military force issued permission to enter into South Africa or officers and crew of a foreign state-owned mode of transportation. Id. § 31.
 Id. § 34.
 Id.; Immigration Regulations § 28.
 Immigration Act § 34.
 Id. § 32; Immigration Regulations § 26.
 Immigration Regulations § 26.
 Immigration Act § 34.
 Id. § 38.
 Id. All employers that employ foreigners are subject to various record keeping requirements. Id.; Immigration Regulations § 30.
 Immigration Act § 49.
 Id. § 39.
 Id. § 45; Immigration Regulations § 33.
 Immigration Regulations § 33.
 Immigration Act § 42.
 Id. § 49. The law imposes bans and penalties on additional institutions, individuals, and illegal foreigners. Id. §§ 40, 41, 44, & 49.
 South African Citizenship Act No. 88 of 1995, 3 BSRSA (rev. through 2011). No online source for the current version of the Citizenship Act was located. The text of the original Act can be found on the website of the South African government at http://www.info.gov.za/view/DownloadFileAction?id=71009.
 Regulations on the South African Citizenship Act, 1995 (Citizenship Regulations), No. 1122, GN, No. 36054 (Dec. 28, 2012), http://www.info.gov.za/view/DownloadFileAction?id=181229.
 Citizenship Act §§ 1, 22 & 23.
 F. Venter, Citizenship and Nationality, in 2(2) The Law of South Africa 127, 133 (W.A. Joubert et al. eds., 2003).
 Citizenship Act §§ 2, 3, & 4.
 Id. § 2.
 Id. § 3.
 Citizenship Act § 5; Citizenship Regulations § 3.
 Citizenship Act § 5; Citizenship Regulations § 5.
 Citizenship Regulations § 5.
 Citizenship Act § 5.
 Id. § 4.
 Ettienne Hennop et al., The Challenge to Control South Africa’s Borders and Borderline 4 (Institute for Security Studies, Aug. 2001), http://www.iss.co.za/pubs/monographs/no57/CONTENT57.HTML; Border Countries, Border Control Operational Coordinating Committee (BCOCC), http://www.borders.sars.gov.za/ BorderCountries/BorderCountries.htm (last visited Feb. 22, 2013).
 Report of the Auditor-General on a Performance Audit of Border Control at South African Police Service 3 (Jan. 17, 2008), http://www.agsa.co.za/LinkClick.aspx?fileticket=Y2BiYuYFisI%3D&tabid=36& mid=382.
 Id. at 2.
 Id. at 9.
 South Africa: Troops Reinforcing a Porous and Dangerous Border, IRIN (May 26, 2010), http://www.irinnews. org/Report/89262/SOUTH-AFRICA-Troops-reinforcing-a-porous-and-dangerous-border; Chris McMichael, The Re-Militarization of South Africa’s Borders, Open Democracy (July 20, 2012), http://www.opendemocracy.net/ chris-mcmichael/re-militarisation-of-south-africa%E2%80%99s-borders; The Democratic Alliance, Sealing Our Borders: A Democratic Alliance Proposal to Tackle Cross-Border Crime and Illegal Immigration 8–10 (Apr. 2008), http://www.da.org.za/docs/606/Sealing%20Our%20Borders_document.pdf.
 McMichael, supra note 67.
 Border Policing, Globalsecurity.Org, http://www.globalsecurity.org/military/world/rsa/borderline-policing.htm (last visited Feb. 22, 2013).
 Department of Defence, Temporary Restricted Airspace for South African National Defence Force (SANDF) Border Safeguarding Operation (Feb. 8, 2011), http://www.dod.mil.za/media/media2011/Air space%20control.pdf.
 Id.; McMichael, supra note 67.
 The Democratic Alliance, supra note 67, at 4.
 Department of Defence, Temporary Restricted Airspace for South African National Defence Force (SANDF) Border Safeguarding Operation, supra note 70; SA Improves Border Security, supra note 73; Department of Defence, Executive Authority’s Overarching Annual Strategic Statement (EA OASS) for 2012 at 39 (Mar. 7, 2012), http://www.dod.mil.za/documents/app/2012/SANDF%20APP%20CD.pdf.
 Department of Defence, Temporary Restricted Airspace for South African National Defence Force (SANDF) Border Safeguarding Operation, supra note 70; Speech by Acting Chief of the South African National Defence Force during a Media Briefing Held at Joint Operations Division Regarding SANDF Deployment on the Borders (Apr. 26, 2011), http://www.dod.mil.za/speeches/November2010/Deployement_on_borders %201.htm.
 Speech by Acting Chief of the South African National Defence Force, supra note 75.
 Id.; Introductory Remarks to the Joint Portfolio Committees on Borderline and Border Post Security on Behalf of the Various Government Departments by Commissioner of the South African Revenue Service (SARS) by Mr. Oupa Magashula 6 (Nov. 2011), http://www.sars.gov.za/Tools/Documents/DocumentDownload.asp?FileID=73171. See also Eric Pelser & Janine Rauch, South Africa’s Criminal Justice System: Policy and Priorities 5 (July 2001), http://mercury.ethz.ch/serviceengine/Files/ISN/104998/ipublicationdocument_singledocument/efc52f45-8b31-496d-9bc5-e94385be5579/en/southafricascriminal.pdf.
 Report of the Auditor-General, supra note 64, at 7.
 Hennop et al, supra note 63, at 10.
 Department of Home Affairs, Statistics UNWTO Capacity Building Programme For Africa Workshop IV, 25–27 August 2010 (Aug. 26, 2010), http://statistics.unwto.org/sites/all/files/pdf/dha_0.pdf; South Africa Ramps Up Border Services, SOUTHAFRICA.INFO (Dec. 20, 2010), http://www.southafrica.info/travel/ border-171210.htm#.USfn8XKwUzQ.
 McMichael, supra note 67.
Last Updated: 11/03/2014