The short answer
You may need legal assistance
The whole question
I am a New Zealander who has been living in South Africa since 2010 with my South African-citizen partner of 23 years and our two children. I have had a number of two-year temporary visas. My permanent visa application was lodged in 2018 at the same time as the last temporary visa and the applications are almost identical. The temporary visa was issued within three months. It has now expired (in October 2020). The permanent application was meant to take a year maximum, i.e. an outcome by July 2019.
What do I do? Who can help? I am at a breaking point as I am unable to get employment to support my family, nor can I leave the country without being banned to return for five years.
The long answer
I’m sorry to say that your case is not unique. Although Home Affairs is required to process permanent residence applications as quickly as possible in terms of both the Immigration Act 13 of 2002 and the South African Citizenship Act 88 of 1995, it has been delinquent in issuing the outcomes of permanent residence applications for years.
In 2019 the Supreme Court of Appeal (SCA) found against Home Affairs in its appeal against a case in which De Saude Attorneys had successfully taken it to court on behalf of 323 foreign nationals, because of the repeated and prolonged delays in processing their permanent residence applications. In its judgment, the SCA made a scathing criticism of the institutional dysfunction at Home Affairs and its disgraceful failure to meet its constitutional and statutory duties. The appeal was dismissed.
Since the lockdown in 2020, with the suspension of several services due to concerns about Covid-19 transmission, Home Affairs has predictably become even more dysfunctional. A list of the services it has resumed in March 2021 under level 1 lockdown contains the following:
Permanent residence applications are not mentioned.
In addition, an article on the SA Migration website warns that South Africa’s immigration and citizenship systems may be about to change fundamentally. While no formal announcements have been made, Aaron Motsoaledi, the Home Affairs Minister, said in an eNCA interview on 7 February 2021, that the immigration system, particularly permanent residence, would be reviewed. This was first mooted in 2017 in a White Paper, which was adopted by the Cabinet of that time. This white paper stated:
“There should be no automatic progression from residency to citizenship in law or in practice. That is, the process of granting residency (short term and long term) and citizenship will be delinked. A points-based system will be used to determine whether the applicant will qualify for a short-term or a long-term residence visa. However, the number of years spent in the country will not qualify a person to apply for naturalisation. The process of granting residence and citizenship status should allow strategic and security considerations and the national priorities of South Africa to be taken into account.”
This goal would be achieved by replacing permanent residence with a long-term temporary visa. Motsoaledi went on to say that he had decided that the separate Immigration, Citizenship and Refugees Acts should all be combined into a single act because they were causing havoc in South Africa’s courts.
As SA Migration says, this is simply not true: there has been no conflict or havoc caused by the existence of these three separate acts. Most functioning democracies have separate acts for immigration, citizenship and refugees because they cover different policies; each one is administered by a different bureaucracy, and it would be impractical to combine them.
Rather, the “deluge of litigation in our courts” has been to counter the dysfunction of Home Affairs in administering these acts.
When he was asked by the interviewer, Jane Dutton, how his new system would protect people who wanted permanent residence or citizenship, Motsoaledi answered that the new system would protect “the integrity and sovereignty of our country” rather than individuals.
This is all sounding quite dire. Perhaps your best bet would be to approach one of the legal organisations that have taken Home Affairs to court successfully, for advice and assistance. These include:
Durban: 031 301 0531
Pretoria: 012 3202943
Johannesburg: 011 339 1960
Legal Resources Centre – Cape Town
Tel: +27 21 481 3000
Scalabrini Centre of Cape Town
Tel: +27 21 465 6433
Wishing you the best,
Answered on April 1, 2021, 12:52 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.