Visa Information

1. Foreigners who have been residing in South Africa on the basis of their work permits for a minimum period of five years;
2. Is a child of a citizen;
3. Is a spouse of a citizen or permanent resident and the Dept is satisfied that a bona fide spousal relationship exists for at least 5 years;
4. Is a child under the age of 21 of a citizen or permanent resident, provided that such permit shall lapse if such foreigner does not submit an application for its confirmation within two years of his or her having turned 18 years of age;
5. If you are in possession of a permanent work offer in South Africa, or;
6. Have exceptional skills and qualifications;
7. Intend to establish a business in South Africa;
8. Qualify as Refugees in terms of Section 27(c) of the Refugees Act;
9. Qualify as retired persons – minimum monthly income or net worth is a huge factor;
10. Are financially independent;
11. Are relatives (biologically or judicially adopted) of a South African citizen or permanent residence permit holder;

Each of the above-named categories is fraught with requirements that must be attained before an application is lodged; an applicant will need a trusted expert to hold their hand through the process. At Immigration Law Associates we take this task seriously.

The above question was settled by the Courts in a long protracted battle in the case of Minister of Home Affairs vs Miriam Ali and others (1289/17) 2018 ZASCA 169. In this matter, the Respondents had all been born in South Africa to parents with foreign citizenship. However they had attained majority age and needed to be recognized as citizens and so they went to apply but were turned away by the Department owing to two major stumbling blocks. Firstly that the Citizenship Amendment Act of 2010 had no gazetted regulations to provide for forms upon which applications can be made. This was an administrative shortcoming by the department itself. Secondly, the amendment came into effect in January 2013 and the Department argued that it could not apply retrospectively; it only applied to children born after the amendment came into effect in January 2013. The Department argued that even those who attained majority age after January 2013 were not eligible.

The Western Cape High Court ruled that the applicants had been treated unfairly and directed that the Department issue them with citizenship upon applications by way of affidavits since the regulations had not been formulated as yet. The Department appealed to the Supreme Court of Appeal which maintained the decision of the High Court. The Department did not comply with the order and instead decided to appeal to the Constitutional Court which refused to hear the matter largely because time frames had not been adhered to and justified. Further, the Constitutional Court ordered that the Department declare that Section 4(3) of the Amendment Act of 2010 which came into effect in January 2013 is applicable to children born before or after 2013 who met the requirements.

This case put to rest the long court battle and the position is now clear. The Department has since completed the regulations and will invite comments before gazetting.

A spousal VISA is issued to a foreign national who is legally married to a South African citizen or a Permanent Residence holder upon application where all requirements are met. The question is, are Ayanda and Jacob legally married for Jacob to qualify for a spousal VISA? The. Customary m answer is NO, there is no valid marriage. Customary marriages are recognised in South Africa as per the Recognition of Customary Marriages Act of 120 of 1998, as long as it can be proven that traditional marriage rites and procedures were followed. It is not enough to pay all of the lobola amount for a marriage to be deemed as complete.

A form of celebration and handing over of the bride to the family of the bridegroom is required to conclude that a marriage had been validly secured under customary law. In this case, Ayanda was not handed over as she was in Pretoria working on the day the lobola was done. In a recent court judgment, it was ruled that the handing over may be deemed to be done if there is proof of the bride’s family having gave some form of blessing or go ahead for the bride to move in and stay with the groom. This did not happen as Ayanda moved in at her own volition, meaning she was not handed over by her family to Jacob to show their acknowledgement and recognition of the marriage. So to say, there is no valid marriage between Jacob and Ayanda.

The courts however, have discretion to depart from this conclusion. Further, the customary marriage must be registered at the Home Affairs within 3 months from date of conclusion of the marriage, had it been valid. Non-registration however, cannot be used to invalidate a customary marriage when all other requirements are met. Lastly, a spousal VISA does not automatically entitile the holder to work, unless a special endorsement upon application has been asked and granted to specifically authorise the holder to work.

Jacob and Ayanda separate after a year, Ayanda then takes the matter to court to ask for spousal maintenance for herself and child maintenance monthly for the child. Are they entitled to maintenance?

For Ayanda to qualify for spousal maintenance, she must be a spouse first. As advised above, there is no valid marriage between her and Jacob, so she cannot be successful in a claim for spousal maintenance. Had there been a valid marriage, section 7(2) of the Divorce Act 70 of 1979 would apply where questions would be asked to help the Court make a decision. These questions relate to Ayanda’s age, likelihood of employment, her contribution to the breakdown of the marriage, her monthly expenses, Jacob’s capacity to pay the asked amount, the couple’s lifestyle before the separation and Ayanda’s prospects of remarriage to another party.

The child qualifies for child maintenance automatically as long as it is proven or admitted that she/he is the biological child of Jacob, that she/he is not yet self supporting and that the child is still a minor hence an adult custodian must bring the application on behalf of the child.

 

Jacob passes away after 3 years. Who is entitled to inherit his estate?

Ayanda is not a spouse and therefore cannot inherit Jacob’s estate. Had she been a spouse she would get half of the estate plus a child’s share as customary are deemed to be in community of property unless an Antenuptial contract is entered into. This child’s share is divided by the number of children plus the number of spouses. However, since she is not a spouse, only Jacob’s descendents ill inherit meaning the child will inherit. If Jacob had other biological children, they too can contact the executor of the estate and register their claims then the estate will be divided amongst the proven descendants of Jacob.

 

What could Jacob and Ayanda do to validate their marriage so that Jacob can get a spousal permit and work at the same time?

Firstly Jacob and Ayanda would have to organise that Ayanda is handed over physically to Jacob or his family, or at least an evident acknowledgement that Ayanda’s family is recognising the marriage and blessing her to be a spouse to Jacob and stay with him. Secondly, they would have to register the marriage with Home Affairs within 90 days from date of handing over, though failure to do this cannot be a ground to invalidate the marriage when all other requirements are met. Lastly, Jacob must legally be in South Africa meaning if he was illegal at the time of marriage then no marriage will be recognised unless the Court finds that serious miscarriage of justice will be arrived at should this requirement not be departed from.