ARTICLES
1. IMMIGRATION ACT
The Immigration Act No. 13 of 2002 (“the Act”) governs immigration in South Africa. Any illegal foreign person must leave South Africa, unless they have been authorised by the Director-General of Home Affairs (by way of a Letter of Good Cause) to remain in the country pending an application for a status.
An illegal person is a person residing in South Africa in contravention of the Act. The term is most commonly encountered when dealing with foreigners who no longer hold valid visas or entered the country illegally. Not all illegal foreigners, however, qualify for such an authorisation. The Act and accompanying regulations provide the guidelines for ascertaining whether an illegal foreigner may remain in South Africa pending the outcome of a visa application.
The Act lists the criteria on which an authorisation application will be judged. In order for an illegal foreigner to qualify for authorisation, he must prove:
i) that he has not been arrested or ordered to depart South Africa;
ii) that he was unable to apply for a visa timeously for reasons beyond his control; and
iii) that he is now in a position to do so. The Department of Home Affairs (DHA) has interpreted this requirement to mean that the foreigner must have completed a visa application ready for submission at the time of the authorisation request.
2. GOOD CAUSE LETTER
If the above requirements have been met, the Director General of Home Affairs may issue a Form 20 (Letter of Good Cause), permitting an application for a visa within a certain date. If the decision in the application is unfavourable, the applicant will need to leave the country immediately. This departure will ultimately result in a ban from South Africa and this will have to be overturned through the overstay appeal process.
3. PROHIBITED STATUS IN SOUTH AFRICA
The Act states that certain persons are deemed to be “prohibited persons” who are banned from entering South Africa. Usually, the offending individuals are often informed by the DHA that they have been placed on the “V-list” with no further follow-up of their prohibited status being communicated to them.
This differs from instances where a person is deemed as an “undesirable person” because of having overstayed their visa period. Irrespective of the terms used in declaring an individual to be a prohibited person, the end result is still an indefinite ban from entering South Africa.
On the other hand a declaration of undesirability results in a ban of between 1 to 5 years. A prohibited person can, however, appeal to the Director-General of the DHA to overturn the decision to declare him a prohibited person on the basis of good cause.
The Act lists the criteria on which an individual will be deemed to be banned from entering South Africa. The most common of these grounds are the following:
i) the individual was found in possession of a fraudulent document or permit;
ii) passport or identity document; or
iii) had previously been deported from South Africa.
In order to overturn one’s prohibited status and indefinite ban from South Africa, the affected individual will need to submit an application to the Director-General requesting the waiver of his prohibited status.
Waiving a ban from South Africa
The Director-General will take a variety of factors into consideration in deciding whether to waive an individual’s prohibited status.
These factors include, but are not limited to:
i) the reasons for the prohibition;
ii) the seriousness of the offence committed; and
iii) the personal circumstances of the individual.
It is imperative for a prohibited person to make written representations for the waiver of his prohibited status and submit it to the Director-General to prohibitionappeals@dha.gov.za.
4. VISITOR’S VISA IN SOUTH AFRICA
A visitor’s visa in South Africa allows a non-visa exempt foreign national to visit the country for tourism and must to be applied for prior to arrival in South Africa.
The visitor’s visa for South Africa also covers many subsets such as the long stay visitor’s visa, the visitor’s visa with the spouse and visitor’s visa with the children.
What is a visitor’s visa?
The visitor’s visa is for a temporary residence in South Africa for up to 3 months and is mainly used for tourism. Visitor’s visas are the most common visas issued for those entering the country to promote tourism. Whereas, the long stay visitor’s visa can be granted for a stay of up to 3 years depending on conditions being met.
Long stay visitor visa South Africa
A long stay visitor’s visa allows a foreign national to remain in South Africa for a period exceeding 3 months, but not more than 3 years. Long-stay visitor’s visas are a collection of many visa sub-categories. An applicant could qualify for a long-stay visa if:
i) they are an accompanying spouse or life partner to a foreign national who holds or qualifies for a valid work visa, a study visa, a business visa, a retirement visa, a relative’s visa, a treaty visa or a crew visa;
ii) an accompanying child would also qualify on the above grounds;
iii) partaking in an academic sabbatical supported by your educational institution;
iv) teaching at an international school;
v) involved in films and advertisements produced in South Africa, including, but not restricted to, an actor, cameraman, hairstylist, make-up artist or sound and lighting crew;
vi) a journalist in the employ of a foreign news agency;
vii) conducting research activities, with proof of financial support;
viii) the spouse or life partner of a South African citizen/permanent resident and has been offered a job, registered to study or has opened and conducts their own business; and
ix) foreign national parents on temporary residency visas and with a child that was born in South Africa.
Visitor’s visa – accompanying spouse
To apply for an accompanying spouse visitor’s visa, the following evidence will need to be provided:
i) marriage certificate/spousal affidavit;
ii) divorce decree (if applicable);
iii) proof of court order awarding custody (if applicable);
iv) support confirmation from spouse; and
v) undertaking to repatriate the family from the temporary residence permit visa holder’s employer.
Visitor’s visa – accompanying child
To apply for an accompanying child’s visitor’s visa, the following evidence will need to be provided:
i) proof of support from parent(s);
ii) undertaking to repatriate the family;
iii) proof of sufficient funds;
iv) all minors under the age of 18 need to possess an unabridged birth certificate; when entering or exiting South Africa; and
v) the visitor’s visa’s validity and duration.
Duration of South African short stay visitor visa
A visitor’s visa is valid for 3 months unless the visa has been applied for on other grounds. The visa can be extended for a further 3 months, as long as the application is made 60 days prior to the expiry of the current visitor visa and as long as there are no restrictions on the current permit. Restrictions to a visa are endorsed onto the face of the visa and may include conditions such as “may not change status”, and “may not renew”.
Duration of a long stay visitor visa
A long stay visitor’s visa in South Africa can be issued for any period not exceeding 3 years, provided the foreign national controls sufficient financial resources to sustain himself while in South Africa.
Advantages of a visitor’s visa
Processing time is faster than the other more complex visas.
Disadvantages of a visitor’s visa
You cannot work, open a business, or study even on a long-term stay visa. You will need to reapply should you want to work or study or to extend your stay.
5. WHAT IS A WORKING VISA FOR SOUTH AFRICA
There are three different categories of work visa that foreign nationals may apply for in South Africa.
5.1 CRITICAL SKILLS VISA
A Critical skills work visa is issued to a foreign national who works within a specific profession deemed to be critical in the Republic of South Africa according to a published list by the DHA.
5.2 INTRA-COMPANY TRANSFER VISA
An intra-company transfer visa allows a foreign national to reside in South Africa while working for the local branch, subsidiary or affiliate of their employer abroad.
5.3 WHO CAN APPLY FOR A GENERAL WORK VISA?
A general work visa allows a foreign national to work and reside in South Africa for a specific employer in any position that, in theory, cannot be filled by a South African citizen or permanent resident. The employer must show that no suitably qualified local candidates could be found to fill the position in order for the foreign national to be granted permission to work in South Africa.
6. QUALIFYING FOR A CRITICAL SKILLS VISA
A foreigner can qualify for critical skills work visa if their position is listed on the critical skills list and they have the necessary qualifications and experience confirmed by the relevant accredited professional body, council or board and recognised by SAQA.
7. APPLYING FOR A CRITICAL SKILLS VISA
The critical skills visa covers a number of industries from agricultural, engineering, architecture, business and economics, information technology, health professionals and more.
8. CRITERIA FOR A SOUTH AFRICAN GENERAL WORK VISA
The applicant must have an offer of employment before starting the application process. The position must have been offered to South African citizens and permanent residents. This is done by advertising the position in print media and going through a strenuous Department of Labour process. Should the prospective employer not be able to fill the position with a local candidate, then the foreign national may be offered the position. The general work visa can then be applied for.
The movie ‘Sleeping with the enemy’ that was released in 1991 featuring Hollywood’s megastar Julia Roberts mirrors the events that often unfold in acrimonious divorces.
With that in mind, I will briefly outline the nature of the South African divorce system. South African divorces are governed by the Divorce Act 70 of 1979. From the onset, it would be amiss to not point out that divorces in this country are no-fault based. This means that a party is not penalised for having an extra marital affair in the duration of the marriage. This can be attributed to the extent of the current decay of morals in our society. It is submitted that the courts would have to spend hours pondering over the explicit details of the escapades of the guilty parties, which would cause extensive delays in finalising divorces.
To start with, a party (Plaintiff) wishing to divorce their spouse (Defendant) needs to be legally married to them. They should be in possession of a marriage certificate in the case of marriages that were concluded in terms of the Marriage Act 25 of 1961. A customary marriage is also considered a valid marriage if the requirements of the Recognition of Customary Marriages Act 120 of 1998 have been satisfied. In terms of this Act, there should have been a celebration of the marriage, lobola paid and the transfer of the bride inter alia.
Presently, cohabiting partners do not enjoy the same legal protection as those who are married. The reasoning behind this was summarised in the Constitutional Court case of Volks N.O v Robinson and Others where it was held that marriage creates legal reciprocal obligations whereas cohabitation is merely an agreement that can be terminated at any given time.
Thereafter, summons must be drafted by an attorney. If the parties do not possess any or substantial assets, the Plaintiff may request the Registrar of the Regional Court to complete information in a ready-made form that will constitute summons. The latter service is free of charge.
In the summons, the grounds of divorce must be stated. Most importantly, they must draw the court to the conclusion that the marriage between the parties has irretrievably broken down, to such an extent that the prospect of the restoration of a normal marriage relationship between the parties is not feasible. This is the test for the granting of a divorce order. Grounds of divorce may be irreconcilable aspects such physical abuse, one party having vacated the matrimonial home or emotional abuse. The recent prevalence of emotional abuse has seen it being cited in most divorce summons at an alarming pace, which is a grave concern.
The summons can only be personally served by the Sheriff on the Defendant. This means that they may not be affixed to the entrance of their residence or served on someone else, except for the Defendant. Ten days are afforded to the Defendant to notify the Plaintiff or the Plaintiff’s attorneys of their intention to defend in a document called a Notice of Intention to Defend. Most people misinterpret this as an attempt by the Defendant to put a stop to the divorce. Although this has occurred in a few cases, it is mostly a means of the Defendant communicating their interest to participate in the divorce proceedings. If they do not file this notice, the proceedings will be conducted without them. This can prove to be prejudicial to them, especially where substantial assets and the minor children’s primary residence are at stake.
After that, the Defendant must file a Plea which is their response to the Plaintiff’s allegations in the Particulars of Claim of their summons. They may also file a counterclaim for something that was not included in the summons. It could be for an asset or to be the primary caregiver of the parties’ minor children.
The Discovery stage follows, which is where the litigants exchange documents that they intend to use in court. This can also be a good time for the legal practitioners to initiate settlement negotiations. At this juncture, tempers between the parties would have simmered and the reality of the divorce proceedings would have sunk in.
If settlement negotiations fail, a Pre-Trial Conference must be held between the parties whereby the issues that are in dispute will be identified and separated from those that are agreed on. This is intended to shorten the trial and to remove the surprise element from court proceedings. The instances where legal practitioners spring evidence from nowhere, leaving the court gasping in shock are relegated to entertaining television shows and are a far cry from reality. After the Pre-Trial Conference, the matter proceeds to trial for adjudication resulting in the granting of the divorce decree.
This is a summary of the divorce process. In between the litigants shuffling documents to and fro, disputes may arise that call for interlocutory applications to be made. These exceed the scope of this article and will be canvassed in subsequent articles.
References:
– Divorce Act 70 of 1979
– Marriage Act 25 of 1961
– Recognition of Customary Marriages Act 120 of 1998
– Rules regulating the conduct of proceedings of the Magistrate’s Court of South Africa
– Volks N.O v Robinson and Others (2005) 2 BPLR 101 (CC) para 56
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Index
By Simelweyinkosi Mlapisane | Attorney (LLB)
Published 20 March 2023
By Simelweyinkosi Mlapisane | Attorney (LLB)
Published 20 August 2022
By Vuyokazi Mpela | Associate Attorney (LLB)
Published 27 July 2020
By Vuyokazi Mpela | Associate Attorney (LLB)
27 July 2020
In South Africa, residential evictions are governed under PIE. PIE applies in respect of all land throughout the Republic, unless ESTA (Extension of Security of Tenure Act) applies. In this article, we discuss what is considered to be a lawful eviction under PIE.
What is PIE? The Prevention of Illegal Evictions from and Unlawful Occupation of Land Act was enacted in 1998 under the constitutional principle that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.
We recently became spectators of an unlawful eviction when we saw in the news and on our social media pages, a circulating video of a naked Cape Town man whose home was demolished by the City of Cape Town solely for the reason that his community, himself included, erected unlawful structures on land not reserved for residential habitation. That man’s constitutional rights, along with many other rights were infringed upon. What we witnessed can be seen as an arbitrary eviction because of the absence of a court order directing the demolition and evictions of people’s homes.
Who may rely on PIE? A land or property owner with the assistance of an attorney may approach the courts in terms of PIE for the eviction of an unlawful occupier. An owner is defined by the Act as the registered owner of land, including an organ of state, and an unlawful occupier is defined as a person who occupies land without the express or tacit consent of the owner, or without any other right in law to occupy such land.
What is a lawful eviction? It is important to follow the correct process in order for an eviction to be lawful. A land or property owner, makes application to court for the eviction of an unlawful occupier, this is after giving notice to the unlawful occupier (previously lawful tenant in most cases) of the breach of the lease agreement between the parties and if the breach is not rectified by the tenant, the owner must legally terminate the lease agreement.
Section 4(2) in the lawful process of an eviction states that at least 14 days before the hearing of the proceedings, the court must serve a written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction. This procedure for the filing and serving of the notice is prescribed by the rules of the court in which the application was issued.
Section 4(5) sets out the content and structure of the notice. The notice must –
- state that proceedings are being instituted for an order for the eviction of the unlawful occupier;
- indicate on what date and at what time the court will hear the proceedings;
- set out the grounds for the proposed eviction; and
- state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.
The court takes note of the importance of Section 4(6) in where If an unlawful occupier has occupied the land or property in question for less than six months at the time when the proceedings are initiated, it may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
The court further takes note of Section 4(7) in where If an unlawful occupier has occupied the land or property in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
When does a court grant the eviction order? The court, if satisfied that all requirements of the above Section 4 have been complied with, and no valid defence has been raised by the unlawful occupier, the court MUST grant an order for eviction. Further to that, the court must determine a just and equitable date on which the unlawful occupier must vacate the land or property. The court must also determine a date upon which an eviction order may be carried out by the Sheriff if the unlawful occupier has not vacated the land or property.
To conclude, PIE was enacted specifically to hold true the constitutional principle of everyone having access to adequate housing and that no one may be evicted arbitrarily from their home. PIE was also enacted to prevent land or property owners from taking the law into their own hands and thus opening them up to criminal liability for carrying out unlawful evictions
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