1. Visitor’s Visas – Section 11 of the Act
Section 11 of the Immigration Act 13 of 2002, as amended (“the Act”) sets out numerous different sub-categories of activities from those seeking to travel to South Africa as tourists for leisure purposes, to short term work stays, volunteer, spouse, research and a host of additional activities in terms of regulation 11(4) of the 2014 regulations that allows for film crews, tour hosts, teachers at international schools, artists and foreign journalists.
1. Visitor’s Visas – Up to 90 days – Leisure Travelers
a) Visitor’s Visa (commonly referred to as “tourist visa”)
The visitor’s visa mostly relates to foreign traveller or tourist wishing to visit South Africa for leisure. On arrival at a South African airport, port or land border, a foreign person is expected to present their right of entry, which may either be in the form of a passport as a visa exempt traveller or a passport with an existing visitor’s visa (technically a port of entry visa) that was inserted into his or her passport before entitling such travel.
Visa-Exempt and Non-Exempt Countries
Note: The ability to travel without a visa will depend on the foreign traveler’s passport and nationality to determine whether he or she is from a visa exempt country that qualifies for a Visitor’s Visa up to 90 days.
Of course, if the foreign traveler is not from a visa exempt country he or she would be expected to approach the South African mission abroad and apply for a Visitor’s Visa.
b) Visitor’s Visa 90 days Extension – Section 11(1)(a) of the Act
A leisure traveler holding a Visitor’s Visa has the right in terms of section 11(1)(a) of the Act to apply for a further 90 days to remain in South Africa. Unfortunately, some South African Missions unreasonably impose restrictive conditions when granting their Visitor’s Visa to prohibit an extension. It is our view, that the Department’s attempt to impose such condition is unlawful conduct and contrary to the Act.
Visitor’s extensions must be applied for in time, which means, either in the first seven days of a thirty day Visitor’s Visa or in the first thirty days of a ninety day Visitor’s Visa.
‘Border Hopping’ – Regulation 11(5) of the 2014 Regulations
Many foreign travelers attempt to extend their rights to remain in South Africa without submitting a Visitor’s Visa extension by leaving the country shortly before their Visitor’s Visa expires in the hope that when they return to a port of entry or land border they will receive a further Visitor’s Visa of ninety days.
Be aware that the Regulations actually limits foreign travelers to only up to seven days Visitor’s Visa where they attempt to return from any country other than their country of origin once that underlying Visitor’s Visa expires.
(c) Section 11(2) of the Act – Short term ‘work’ stay
A short-term ninety-day work stay has to be applied for at any South African Mission abroad and is not granted in South Africa. It can be extended whilst in South Africa.
A short-term ninety-day work stay entitles a foreign person to enter South Africa and formally work for a South African employer or assignor.
It does not require the typical requirements of a long-term work visa and is therefore utilized for those workers seeking a quick turnaround to enter the country and work.
2. Visitor’s Visas – Excess of 90 days up to 3 Years
There are numerous sub-categories under the visitor’s section that permit foreign persons to perform activities set out in section 11(1)(b)(i) to (iv) as well as the categories set out in Regulation 11(4) of the Immigration Regulations 2014.
- Sub-categories in terms of Section 11(1)(b)(i) to (iv) of the Act include:
- Those wishing to perform academic activities in academia and often relates to professors, lecturers and academic professionals who wish to travel to South Africa on ‘Academic Sabbaticals’
- Those seeking to pursue ‘Volunteer or Charitable’ Activities – which would take up non-remunerative work at registered charitable legal entities in the form of NGO’s or NPO’s;
- Conducting of ‘Research’ in the academic profession and often at tertiary educational institutions or international research entities in South Africa;
- Activities that are determined to be “Any other prescribed activity”, and relates to:
- (aa) Accompanying Spouse/Child, which relates to a spouse and or dependent child of main applicant and holder of a visa and is limited to a marital spouse or permanent partner and or biological children and or adopted children (does not include step-children);
- (bb) Categories set out in Regulation 11(4) of the Immigration 2014 Regulations including:
- Teacher at international schools which would entail ‘independent school’ in terms of the Schools Act;
- Films & advertisement assignments and the associated crew;
- Foreign journalists seeking to come to South Africa on assignment from abroad;
- Visiting Professor or Lecturer or Academic researcher (note: similar sub-category as a “researcher” and therefore important to present the sub-category very clearly as either “research” or “visiting professor”);
- An Artist who writes, paints or sculpts and can present a portfolio of works that can show such artistic ability and recognition publicly;
- Entertainer performing in South Africa which should be someone who has a public profile;
- Tour Leader or Host of recognized group, which envisages those engaged in travel and tourism.
- The Section 11(6) of the Act, commonly known as the ‘Spouse Visa’, relates to foreign spouses who are “spouses” as defined in the Act, and either married or in permanent partnerships with South African citizens or permanent residents, and which permits the foreign spouse the additional rights to Work, Study, Conduct Business or Volunteer. What is important to note is the fact that the Spouse Visa is one of the exceptions that allows a foreign spouse to apply within South Africa from a Visitor’s Visa to Spouse Visa despite the fact that the Act technically does not allow it. It is also quite common that a foreign spouse and his or her South African spouse marry in South Africa and then apply for a spouse visa in South Africa. This can be facilitated through our offices by making sure that the foreign spouse enters South Africa with a ‘letter of non-legal impediment’ and foreign police clearance. The permission to change status in South Africa was as a result of a Constitutional Court decision of Nandutu versus Minister of Home Affairs CCT114/18 [2019] ZACC 24 handed down on the 28 June 2019. If you are a foreign spouse and in a permanent partnership with a South Africa i.e. unmarried then you can apply for a spouse visa subject to compliance with Regulation 3 of the Immigration Regulations 2014, which will require that you are able to show cohabitation together and sharing of financial obligations for at least two years plus a notarial contract and spouse affidavit (Form 1712A).
