Annexure A4

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Government Gazette

REPUBLIC OF SOUTH AFRICA

Vol. 443 Cape Town 31 May 2002 No. 23478

THE PRESIDENCY

No. 766 31 May 2002

It is hereby notified that the President hasassented to the following Act, which ishereby published for generalinformation:

No. 13 of 2002: Immigration Act, 2002.

AIDS HELPLINE: 0800-123-22 Prevention is the cure


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2 No . 23478 GOVERNMENTAZETTE, 3 1 MAY 2002Act No. 13,2002 IMMIGRATION ACT, 2002

GENER AL EXPLANATORY NO TE:[ ] Wordsnold type in square bracketsndicate omissionsro mexisting enactments.

Words underlinedwith a solid linendicatensertions inexisting enactments.

(English text signed by the President.)(Assented to 30M ay 2002.)

ACTTo provide for the regulation of admission of persons to, their residence in, andtheir departure from the Republic; and for matters connected therewith.

PREAMBLEIn providing for the regulation of admission of foreigners to, their residence in . andtheir departure from the Republic and for matters conne cted therewith. the Immi-gration Act aim s at setting in place a new system of immigration control whichensures that-

temporary and perma nent residence permits are issued as expeditiously aspossible and on the basis of simplified procedures and objectiv e, predictableand easonable requirem ents nd riteria, without consu ming excessiveadministrative capacity;security considerations are fully satisfied and the State retains control on theimmigration of foreigne rs to the Republic;interdepartmental coo rdination constantly enriches the functions of immigra-tion control and h at a constan t flow of public nputs is present in furtherstages of policy form ulation . including regulation making;the needs and aspiration s of the age of globalization are respected and theprovisions and the spirit of the General Agreement on Trade in Services iscomplied with;border monitoring is strengthened to ensure that the borders of the Repddicdo not remain porous and illegal immigration through hem m ay be effectivelydetected. reduced and deterred;ports of entry are efficiently admin istered and managed:immigration laws are efficiently and effectively enfo rced , deploying to thisend significant administrative capacity of the Departtnent of Home Affairs.thereby reducing the pull factors of illegal immigration;the South Africaneconomy may have accessat all times to the full m easureofneeded contributions by foreigners;


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4 No . 23478 GOVERNMENTAZETTE. 3 1 MA Y 2002Act No. 13.2002 IMMIGRATION ACT. 2002

(i ) the contribution of foreigner s in the South African abour market doe s notadversely impact on existing labour standards and the rights and expec tationsof South African workers;(j) a policy connection is maintained between foreigners working in South Africaand the training of our nationals;( k ) push actors of illegal mmigration may be addressed in cooperation withother Departments and he foreign states concerned;( I ) immigration control is perfo rmed within the highest applicable standa rds ofhuman rights protection, and( m ) xenophobia is preventedan dcounteredboth within Gov ernm ent andciyilsociety.

B IT EN AC TED by the arliament of theRepublic of South Africa.sfollows:-TABLE OF CONTENTS

Sections1 . Definitions

OBJECTIVES AND STRUCTURES OF IMMIGRATION CON TROL2.3.4.5.6.7 .8.

9.

IO .1 1 .12 .13.14.15 .16.17 .18.19.20 .21 .22 .23 .24 .

25.26 .27.28 .

Objectives and fu nctions of immigration controlPowers of the Departme ntImmigration Advisory BoardFunctions of BourdInter-departmental co-operationRegulation makingAdjudication and review proceduresADMISSION AND DEPARTURE

Admission and departu reTEMPORARY RESIDENCE

Temporary residence permitsVisitors permitDiplomatic permitStudy permitTreaty permitBusiness permitCrew permitMedical treatment permitRelatives permitWork permitsRetired person permitCorporate permitExchange permitAsylumCros s-bord er and transit passesPERMANENT RESIDENCE

Permanent residenceDirect residenceResidence on other groundsWithdrawal of permanent residence

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29.30 .31 .

32 .33 .34 .35.36 .

37 .

38 .39 .40 .41 .42 .43.4.45 .

46.47 .48 .

49 .50.

51 .52 .53.54 .5 5 .

EXCLUSIONS AND EXEMP TIONSProhibited personsUndesirable personsExemptions

ENFORCEMENT AND MONITORINGIllegal foreignersInspectorateDeportation and detention o f illegal foreign ersShipsMonitoring entries in Republic and exits

IMMIGRATION COURTSImmigration Courts

DUTIES AND OBLIGATIONSEmploymentLearning institutionsAccommodationIdentificationAiding and abetting illegal foreign ersObligation offoreignersOrgans o f StateOther institutions

MISCELLANEOUSImmigration practitionersInternal monitoring and controlForeigners erroneously allowed to enter Republic

OFFENCESOffencesAdministrative offences

TRANSITIONAL PROVISIONSTransitional definitionsFunctions o f Department and BoardExisting permitsRepeal of lawsShort title and commencement

SCHEDULES

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35Schedule 1 :Offences referred to in section 28(a) an d (b ) of the ActSchedule 2: Offences referred to in section 28(6) of the ActSchedule 3: Laws repealed or amended


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Definitions and interpretation1. ( 1 ) In this Act , unless the context indicates otherwise-(i ) admission mean s entering the Republic at aport of e n t n on the basis of theauthority to do so validly granted by this Act or by an immigration officer interms of thisAct, and heverb to admit has a correspondingmeaning: 5(ii) application means a request in the prescribed form which com plies with

the requirements and provides the information and documentation whichmaybe prescribed;(iii) Board means theImmigration Advisory Board contemplated in section 4 ofthis Act; 10(iv) border means the national borders of the Republic and includes ports ofentry, coastlines and the outer margin of territorial waters;(v ) charteredaccountant means a person referred to in section 1 of theChartered Accoun tants Designation (Private) Act, 1993 (Act No . 67 of 1993)andncludes an accountant, other than a c h a r t e r e d a ~ c o u ~ ~ t a n t .ho is 1.5recognised as such under any law and who has been specifically or generallydelegated by a chartered ccounratzt to perform any or all activitiescontemplated in this Act ;

(vi ) citicen has the meaning assigned thereto in the South African CitizenshipAct,99 5nd citizenship has a correspondingeaning; 20(vii) corporate applicant means a juristic person established under the laws ofthe Republic or of a fore ign cou ntn which cond ucts business. not-for-gain.agricultural or comm ercial activities within the Republic and which appliesfor a co rporate permit referred to in section 21 of this Act:this Act;(ix) c*us tomar~nion means a conjugal elationshipaccording to indigenouslaw and custom and which is recognised and documented as prescribed:

( x ) Department means the Departmerzt of Home Affairs;(xi) departure means exiting the Republic from a port ofenrr? in compliance 30with this Act and the verb to depart has a corresponding meaning;(xii) deportation means the action or procedureaimed at causing an illrgtrlforeigner to leave the Republic involuntarily, or under detention in terms ofthis Act and the verb todeport ha s a corresponding meaning;

(viii) Court mean s an Immigration Court established in terms of section 37 of 25

(xi i i ) Director-General means the Director-General of the Deprtmerl t ; 3.5(xiv) employer includeshe person contractually bound by the applicableemploym ent contract as an emplo!er or. in the case of a juristic person. itschief exe cutive officer or the person to whom such officer has delegated thefinal responsibility in respect of personnel matters:(xv) foreign ountry means a country other thanhe Republic: 40( x v i ) for eign state means the juristic entity governing a for-eigrl courltr?.:(xvii) foreigner mean s an individual who is neither a ciri:en nor a resideut. but isnot an illegal foreigner:(xviii) illega1,foreigner means an foreigner who is i n the Republic i n contraven-tion of thisct andncludes a prohibited person; 4.5(xix) immediate family means persons within the second step of kinship. where

marriage or a spous al relationship is counted as one of such steps. but anycommon antecedent is not so counted:


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(xx)

(xxi)

(xxii)(xxiii)(xxiv)(xxv)

(xxvi)

(xxvii)

(xxviii)

(xxix)

(xxx)(xxxij

(xxxii)

immigration oflcer means an officer of the Department. or another personhaving the prescribed requirements, appointed as such from time to time byth e Deparrment and, forpurposes of this Act, ncludes a person employed in .or contracted by, the Department who hasbeen authorised by the Deparrmentto exercise certain pow ers and perform certain functions in thename of and on 5behalf of the Department;marriage means a legally sanctioned conjugal relationship intended to bepermanent and concludedunder the laws of the Republic, or under the laws ofa foreign country as prescribed from time to time, and includes a C L I S I O I ~ L I I ~union; 10master means themaster of a ship and refers o the person who at any giventime is in charge or command of a ship;Minisrer means the Minisrer of Home Affairs;organ of State has the meaning defined in section 239 of the Constitution:owner means the owner of record and, in the case of a ship, it includes the 15charterer of the ship and any agent within the Republic of the obLner or thecharterer:passport means any passport or travel document containing he prescribedinformation an d characteristics issued-( a ) under heSouth AfricanPassport ndTravelDocument Act. 1994: 30(b ) on behalf of a foreign stare recognised by theGovernment of the

Republic to a person who is not a citizen;( c ) on behalf of any international organisation prescribed from time to time.including regional or sub-regional ones, to a person wh o is not a c i t i xw:and 25( d ) any other documentapproved by the Director-General after consultationwith the Minisrer and issued under special ircum stanc es to a person whocannot obtain a document referred to in paragraphs ( a ) o (c);port ofenrry means a place prescribed from time to time where aJbreignerhas to report before he or she may m ove, sojourn or remain within. or enter the 30Republic:premises means any building, structure or tent together with the land onwhich it is situated and the adjoining land used in connection with i t an dincludes any land without any building, structure or tent and any vehicle.conveyance, or ship; 35prescribed means provided for by regulation, the verb to prescribe has acorresponding meaning and prescribed from time to time refers to section7(2);prohibited person means any person referred to in section 29 of this Act:publish means publish by notice in the Gouernmetzt G trzette and. to the 40extent possible and feasible under the circumstances, convey by mail o r e-mail to parties or stakeholders who have requested their inclusion or havebeen included in mailing lists to be maintained by the Deparrment i n respectof subject matters in respect of which public input is called for by this Act.prescribed. advisable or expedient: 45regularions mean s generil rules adopted by the Minister after consultationwith the Board in terms of this Acr an d published:(xxxiii) Republic means the Republic of South Africa and its territory:


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(xxxiv) resident mea ns the holder of a permanent residence permit referred to in(xxxv) ship includ es any vessel, boat, aircraft or other prescribed conveyance;(xxxvi) spouse mea ns a person who is party to a marriage, or a customary urlion,orto a permanenthomosexual or heterosexual elationshipwhich alls for 5coha bitation an d mutual financial and emo tional supp ort, and is proven by aprescribed affidavit substantiated by aotarialontractndspousal

relationship has a corresponding meaning;(xxxvii) status means the permanent or te mp or an residence issued to a person interms of this Act and includes the rights and obligations flowing therefrom, 10includ ing any term and condition of residence imposed by the Departmentwhen issuing any such permits;

section 25 of this Act;

(xxxviii) temp orary residence mean s a permit referred to in section 10 of this Act:(ixl) this Act means this Act, including its schedules,ndncludes the(xl) training fund mea ns the public record referred to in section 2(2 ) (g l ( i i f

(xli) undesirable person means a person referred to in section 30 of this Act:(xlii) visa means the prescribed endorsement issuedupon application on thevalid passport of a foreigner granting such oreigner the authority to proceed 20to the Republic to report for a prescribed exam ination to an immigrationofficer at the port of entry with a view to admission on a specified ternpornnresidence, whichatany time before adtnission may bewithdraw n by theDepartment;Republic, excluding work on the basis of a permit referred to in sections 12 or14. or work for a foreign employer pursuant to a contract which onlypartiallycalls for activities n the Republic, or work as a business or profession m ainlybased outside the Republic but requiring activities within the Republic.

regulations made pursuanthereto; 15this Act;

(xliii) tc..orkmeans business, commercial or remunerativeactivities within the 25

(2) In sections 15. 18, 19, 21 , 26 an d 27. whenever a certificate by a chc~rtered 30accountant is called for. the applicant may instead elect that such certific ate be furnishedby anoth er person to whom the facts contained in the certificate are k nown, but i n e\.erycase where the certificate s issued to a person othe r than a chartered ~ c c o ~ ~ ~ t ~ z n r .t shallbe necessary for the Department to verify the facts itself.OBJECTIVES AND STRUCTURES OF IMMIGRATION CONTROL 35

Objectives and functions of immigration control2. (1) In the administra tion of this Act, th e Department shall pursue the following

( a ) Prom oting a human-rights based cultu re in both g overn men t and civil societyin respect of immigration control; 40( b ) facilitating and simplifying the issuance of permanentnd t e n y o r a nresidences to those whoare entitled to them .and concentrating resources andefo rts in enforcing his Act at community level anddiscouraging i l legdforeigners;f c ) detecting andeporting illegal fore igne rs; 45

objectives:


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Act No. 13,2002 IMMIGRATION ACT, 2002~ _ _ _

creating a climate of cooperation with other organs of State to encourage themto take esponsibility in implem enting [his Act within heambit of theirrespective p owers and functions;preventing and deterring xeno phob ia within the Department, any sphere ofgovernment or organ of State and at com munity level;creating a climate of cooperationwith communitiesand organs of civilsociety, ncluding radeunions, toencourage them to cooperate with theDepartment to implement this Act;promoting a climate within the Republic which encourages illegal foreigner sto depart voluntarily; 10ensuring th at, subject to this Act, migration to and from the Republic takesplace only at ports of entry and illegal cros sing of the borders is deterred,detected and punished;promoting integration of functions. harmonisation and coop erative relationsamo ng all organs of State with responsibilities in respect of controlling the 15borders and activities at ports of en try;regulating the influx offoreigners and residents in the Republic to-(i) promote economic growth, inter alia. by-( a a ) ensuring that businesses in the Republic may employ foreignerswhore needed; 20

(bb) facilitatingoreign investm ents, tourismndndustries in theRepublic which are reliant on international exchanges of people andpersonnel;( c c ) enabling exceptionally skilled or qualified people to sojourn in theRepublic; 25(dd) increasing skilled hum an resources in the Republic;(ee l facilitating the movem ent of stud ents and academ ic staff within theSouthern African Develo pme nt Com mun ity for tudy, teaching andresearch; and($) promotingourism; 30(ii) where applicable. encou raging the training of citizens an d residents byemployers to reduce employerss dependence on foreigners labour andpromote the transfer of skills from foreigners to citizens and residents:

(iii) enable amily eunification;administering he prescribed fees, fines and other payments it exacts or 35receives in such a fashion as to defray the overall cost of its oDerationadministering refugee protection and rela ted legislation:thereto; and( m ) administering citizenship by naturalisation and incidentalmatters relating( n ) facilitating com pliance withhe Republics internationalbligations. 40( 2 ) n order to achieve the objectives set out n subsection ( l ) , he Deparrlnent shall-( a ) inspect workplaces in the prescribed manner to ensure that no illegal foreigne ris employed and that foreigners. if any, are employed in the job descriptionand at the termsand conditions set out n their tem po ra n residences, and t l~nrthe relevant training fe es , if an y are paid: 45( b ) inspect institutions of learning to ensure that illega1,foreigners are not enrolledtherein:

( e ) liaise with the South Africa Police Serv ice to-


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16 No. 23478 GOVERNMENT GAZETTE. 3 I M24Y2002Act No. 13, 2002 IMMIGRATION ACT, 2002

(ij en sur e that the identity of people who are arrested, detainedor convicted(ii) educ ate and instruct law-enforcing agencies to detect illegal foreigne rsliaise with the Sou th African R even ue Service to ens ure tha t the identity ofpeople whocontravene theprovisions of the laws dministere d by theComm issioner or the South African RevenueServices is checked forpurposes of t h i s Act:educ ate com mun ities and organs of civil society on the rights of foreigners,illegcd foreigners and efugees, nd cond uctother activities to preventxenophobia;in cooperation with the Department of Foreign Affairs-( i ) promote programmes in foreigncountries with theaim ofdetemngpeople from becoming illegal fore igne rs; an d

( i i j table he need for cooperation in preventingmigration owards theRepublic on the agenda of relationswith foreignstates, negotiatingappropriate measures and agreemen ts with suchforeign states:

is checked for purposes of this Act; an dand report them to the Department;

maintain public records show ing fun ds received or collected-( i ) under this Act from employers as raining fee s or fines. which. in theprescribed percentage, shall be known as the training j h d ;

( i i ) from foreign stares to defray the cost of repatriating illegal foreigne rsoriginating from their ountry, as determinedhroughnternationalrelations and agreements;( i i i ) from donors or other sources: and( i v j from othe r fees and fines imposed o r exacted by the Deppartrnent in termsof rhis Act which, in the percentageprescribed from time to time. shall beknown as the judicial assistance fund:monitorndxact com pliance from any person or entityxercisingresponsibilities o r bearing duties or obligations in terms of t h i s Act;deport illegal foreigne rs who are unwilling to leave the Reprhlic voluntarily;train its investigative unit to detect illegal foreigners. monitor compliancewith the ter ms and conditions of permits, control borders. and perform anyother function under rhis Ac t or which may be delegated to it:be empowered to contract hroughpublic ender with privatepersons toperform under its control any of its functions, including but not limited todetaining and escorting illegal foreigners for deportation purposes andmanning ports of entry;administer ports of entry and monitor borders in terms of section 36 of thisAct ; an dconduct any other activity called for by r h i s Acr or necessary for or conduciveto its implementation.

Powers of Department

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3. ( 1 ) Subject to. and fo r the purposes of. rhis Acr, through its duly authorised office rs.the Depc~rrtnenrmay-


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( a ) enter workplaces and inspect em ploym ent records for the purposes of this Act;( b ) enter and inspect for purposes of this Act any place open to the public;( c ) exercise any powers elevant to, or necessary or, he unctions set out insection 2 ( 2 ) ;( d ) requestny sphere of government or organ of State to- 5(i) take actions or adopt procedu res to ensure that the recipients of theirservice s are identified as citizens an d residents or foreigners: and

( i i ) request hat prescribed services, or licenses, or concessions or otheractions be subject to proof of status or citizenship.provided hat uch equirements hall not prevent the rendering of uch 10services to illegal foreigne rs when so required by the Constitution or a law;( e ) request an yone in he Republic, who is reasonablysuspected of being ani l legul foreigner, to identify himself or herself as a citizen or resident, or toproduce a permit to be in the Republic;If:) rganise and participate in community fora or otherommunity-based 15organisation to deter xenophobia and involve the citizenry in the upplicationand implementation of this Ac t, and educa te the citizenry in migration issues:(9) appre hend , detain and deport any illegal forei gner :( h i despite any other law, represent he State in any proceedings in a Court in( i j assist the public prosecution of any offence under this Act:( j ) enter into an agreement with any person, including any department of State. interms of which the Department will be authorised to make use of any of thefacilities. equipmen t or personnel belonging to. or under the control. o r i n theemploymen t of such person or department: 25f k i exercise any other pow er called for by this Act , or necessary for or conduciveto its implementation: and( 1 ) delegate any of its power s and functions, provided that-

( i ) the terms nd ondition s of such delegations re pproved by theMinister after consultation with the Board: an d 30( i i ) such delegation is performance audited by the Director-Gn?eml an dreviewed by the Board every twelve months to express a recommenda-tion to the Minister, failing which it shall lapse.

( 2 ) Subject to this Act , the powers and functions vested in the Departnlenr and the

respect of anyatterrising out of this Act: 20

Director-General in terms of this Act shall be exercised and performed as directedby the 35Minister.functions vested in him or he r in terms of this Act.( 3 ) Th e Minister may delegate to the Director-General any of the powersan d

Immigration Advisory Board4. ( 1 ) The Immigrationdvisory Board is herebystablished. 40( 2 )The Board shall be chaired by a designee of the Minister and c onsist of-( a ) one represen tative of the Department of Trade and Industry:( 0 ) one representa tive of the Department of Labour:


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(c) one representative of the Department of Tourism;( d ) one representative of the Department of Finance;( e ) one representative of the Department of Safety and Secu rity;(f, one representative of the So uth African Revenue Servic e;(g) one representative of the Department of Education;( h ) one representative of the Department of Foreign Affairs;( i ) one representative of the Department of Defence;( j ) th eDirector-General;( k ) up to five persons from civilsociety, ncluding one representingorganisedlabour and one representing organised business. appointed by the Ministerafter the Minister has given noticen the Gaz ette soliciting p ublic no mination sof such persons; and( I ) up to four ndividuals appointed by the Mirzisrer on grou nds of their expertisein administration. regulatory matters or immigration law, contro l, adjudica-tion or enforcement.( a ) shallmeet egularly;(b) may determ ine its procedures at meetings:( c ) may invite mmigration officers and other emp loyee s of the Department to( d ) may appoint com mittees from its memb ers to assist in the performance of its

(3) The Board shall meet when called by the Chairperson and-

attend or participate in its meetings; andfunctions.(4) A member of the Board referred to in subsection ( 2 ) ( k )and (I) shall-

( ( I ) serve fora four-year-term , at th e exp iry of which they shall b e eligible for oneor morere-appointments,provided that theMinister may elect to fill anyvacancy which may occur by appointing a person for the unexpired portion ofthe term of the member in whose place such person is appointed:(i) be or become an unrehabilitated insolvent:

( i i ) be or have been judicially declared of unsound m ind:( i i i ) suffer an infirmity of mind o r body preventing him or her from the proper( iv ) be convicted by final conviction or sentence of an offence with out the( v ) be or become a political office bearer: or

(v i ) be or have been removed from an office of trust on account of misconduct

( b ) at no time-

discharge of the duties of his or her office:option of a fine;

involving theft or fraud;( c ) cease to be a member-

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(i) on resignation;(ii) if requested by theinister to resign for good cause:0

( i i i ) if he or she fails to attend two consecutive m eetings of the Board. unless( iv) if he or sh e becomes disqualified in terms of this Act; anddetermined rom ime to time by theMinisterafterconsultation with the 45Dir-ector-Generaland with the approval of the Minister of Finance.

his or her apology has been accepted by the Board; or( d ) be paid such remuneration and be entitled to such benefits and allowances as


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22 No. 23478OVERNMENTAZETTE. 3 I MAY 2 0 0 2Act No. 13,2002 IMMIGRATION ACT, 2002

( 5 ) The Board may request he Department to provide it with he necessaryadministrative capacity and assistance.(6) The Board may establishan doperate through committees to carry out itsfunctions.(7 ) The Minister may dissolve the Board on such terms and conditions as he or sh esees fit, provided that a new Board shall be convened within 90 calendar days.(8) The m embers of the Board wh o are not public servants shall be entitled to suchremuneration and reimbursements as the Minister may determine from time to time inconsultation w ith the Minister of Finance.(9 ) Subject to this Act, he Board shall operate and meet as prescribed.

Functions of Board5. The Board shall advise the Minister in respect of-( a ) the contents of regulations made in terms of rhis Act ;( b ) the formulation of policy pertaining to immigration matters:I C ) the implementation of immigration policy by the Department;( d ) the reviewing of a decision of the Department in terms of section 8 if and

( e ) such other mattersrelating to this Act on which the Minister may requestwhen requested by Minister;advice.Inter-departmental co-operation

6. i ) The Direcror-General or his or her deleg atee shall chair a liaison committeemade up of senior mplo yees representing the various departm ents which havefunctions relating to ports of entry.( 2 ) The liaison comm ittee shall meet when ever necessary to discuss and agree onco-operation and co-ordination with regard to matters relating to the administration ofports of entry and the movement of goods and persons through ports of entry.

Regulation making7. ( 1) The Minister shall have the power to make regu1a~ion.s alled for. or conduciveto. the implementation of this Acr and in making regu1ation.s i n terms of tlli.7 Act, theMinister shall-l a ) publish and table in Parliament his or her intention of adopting regrr/ation.sspecify ing their subje ct matter and soliciting public comm ents during a periodnot sho rter than 21 calendar days;

( b ) having considered public comm ents received, publid1 and table in Parliamentdraft regulations soliciting furth er comm ents during a period not shorter than21 calendar days; and( c J publish thefinal regulations together with asummary of comm ents whichhave not been acc omm odated and the reasons for their rejection.( 2 )Only subsection ( 1 )(b! and (c ) shall apply in respect of any regulations which rlzisAcr requires to be prescribed from time to time.( 3 ) The Board may request the Minister t o -( n l reconsider any intended regulations prior to their promulgation; orlb ) consider the need to adop t, repeal or amend regularions.(4 ) Regulations shall be consistent with this Acr. and shall not disregard the advice ofthe Bourd and public comm ents in an arbitrary or capriciou smanner: Provided that anyregulationmade in terms of this ection hallbe abled within 30 daysafter itspromulg ation if Parliament is in essionand if Parliament is in recess when theregulation is published, within 12 days aft er the resumption of the sessio n.

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Adju dication and review procedures8. (1 ) Before making a determ ination adversely affecting a person, the Departmentshall notify the contemplated decision and related motivation to such affected personand give such person at least 10 calendar days to ma ke epresentations, after which theDepartment shall notify such person hat either such decision has been withdrawn or 5modified, or that it shall becom e effective, subje ct to subsection (2).

decision of th e Department may appeal against it-( 2 ) Within 20 calendar days of its notification, the person aggrieved by an effective(a) to the Director-General, who may reverse or modify it within 10 calendardays, failing which the decision shall be dee med to have been confirmed: or I O( b ) within 20 calendardays of modification or confirmation by the Director-General, if any, to he Minister, who may reverse or modify it within 20calen dar days, ailing which the decision hallbe deemed to have beenconfirmed. and be final, provided that in exceptional circum stances or whensuch person stands to be deported as a conse quenc e of such decision- 15(i) the Minister may e xtend such deadline; and(ii) at the request of the Department, the Minister may request such person topost a bond to defray his or her deportation costs, i f applicable: or(c ) within 20 calendar days of modification or confirmation by the Minister. i fany, to a C m r t . which may suspend, reverse or modify it i n accordance with 20

its rules.( 3 ) f no t appealed in terms of subsection ( 2 ) .a decision of the Deportment is final.(4)Any person adversely affected by a decision of th e Depczrnnenf shall be notified insubject to section 37 of this Act .writing of his o r her rights under this section and otherprescribed matters. and may not 25be deported before the relevant decision is final.15) Notwithstanding subsection ( I ) , as soon as notified to the person concerned interms of subsection (4). the decision of an imm igration officer refusing entry into theReplrblic shall be effect ive for the purpose of subsection ( I ). and final for purposes ofdeportation, but subjectoubsections ( 2 ) an d (3). 30

ADMISSION AND DEPARTUREAdmission and departure

9. ( I ) Subject to this Act, no person shall enter he Republic at a place other than a port( 2 )Subject to rlzisArt. a citizen or a resident shall be admitted. provided that he or sh e 35ofe lm?.identifies himself or herself as such in the prescribed manner and. in the case of aresident. the immigration officer records his or her entrance.( 3 )No person shall leave the Republic-

I n ) unless in possession of a passport, or a certiticate issued by the D e p r t t m w tupon upplication in lieu thereof; 40(6) unless, if he or she is a person under the age of 16 years who does not hold apassport, he or she is accompanied y his or her parent who holds a pussportin which his or her name was entered in terms of the provisions of the SouthAfrican Passports and Travel Documents Act. 1994 or on behalf of anygovernment or international organisation recognised by the Gove rnme nt of 45

the Republic; an d( e ) except at a port of entry, unless-


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(i) inpossession of a certificate by the Department grantingpermissionupon application to leave the Republic at a place other than a port ofentry within a certain period ot exce eding six mon thst a time, providedthat for ood ause an immigration officer may withdraw suchpermission; or 5(ii) exempted by the Minister, as he o r she deem s it, on recomm endation ofth e Director-General, which exemption maybewithdrawn by theDirector-General at any time; and( d ) unless, in the case of a resident, the departure is recorded by an im migrationofficer. 10(4 ) A foreigner may only enter the Republic-( a ) by producing to an immigration officer his or he r passport to be valid for noless than 30 days after the expiryof the intended stay, and( b ) if issued with a valid temporary residence, as set out in this Act,and may only depart as set out in this Act. 15

TEMPORARY RESIDENCETemporary residence permits

10. (1) Upon admission, a foreigner may e nter and sojourn in the Republic only if in( 2 )Subject to this Act,upon application and upon prescribed examination at the porr 20possession of a temporary residence.of entry, one of the temporary residences set out in sections1 to 23 may be issued o aforeigner.(3) If issued outside theRepublic, a temporary residence s deemed tobe of for ce andeffect only afrer an admission.(4)A temporary residence is to be issued on condition that the holder is no t or does 25not become a prohibited or an undesirable person.( 5 ) For good cause, as prescribed, the Department may attach reasonable individualterms and conditions to a temporary residence.(6)Subject to this Act, oreigner may change his or he r status while in the Republic.

Visitors Permit 3011. (1 ) A visitors permit may be issued by the Department in respect of a foreignerw h o -( a ) holds a visa;or( 6 ) is a citizen of a foreign state prescribed from time to time and provides thefinancial or other guarantees prescribed from time to ime in respect of his or 3 5he r deparrure,provided that su ch permit-(i) cannot exceed three months and upon application may be renewed by theDepartment, or(ii) may be ssued by the Department upon application for any period not to 40exce ed three years to a oreigner who has satisfied the Department that he orshe controlssufficient available financial resources, which may be prescribedfrom time to time, and is engaged in the Republic in-( a a ) academic sabbaticals;

( b b ) voluntary or charitable activities; 45( c c ) research; or( d d ) other prescribed activities and cases.(2 ) The holder of a visitors permit may not conduct work.


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28 No. 23478 GOVERN MENT GAZE'ITE. 3 1 MAY 2002Ac t No. 13,2002 IMMIGRATION ACT, 2002

(3) An illegal foreigne r receiving a visitor's permit shall co mply with any term s andconditions which may be prescribed from time to ime and provide he prescribeddeposit to be forfeited to the Department in case of his or her non- comp liance with thisAct.Republic over a period not exceeding threemonths are requested by thepersonconcerned.

(5 ) Special financial and ther guarantees may be prescribed in respect of the issuanceof a visitor's permit to certain classes of foreigners prescribed from time to time.

(4)A visitor's permit may be issued for more than one entry if multiple entries into the 5

Diplomatic permit 1012 . (1) A diplomatic permit may be issued by the Department. or by the Deparmzenrof Foreign Affairs under delegation and in the prescribed manner and form and asdirected by the Department, to-

(a) an ambassador, a minister of aforeign state, a career diplomat or consula rofficer of a foreigngove rnmen t recognized de ure by the South African 15Government, or a representative of an international organisatio n pwscribedfrom time to time, who is accepted by the Minister of Foreign A ffairs;( 6 ) upon a basis of reciprocity, ther officials or mplo yees of a foreigngove rnmen t or international organisation co ntem plated in paragraph (a ) ;( c ) a member of the immediare f ami l y of the foreigners contemplated in 20paragraphs (a) and (b);( d ) upon a basis of reciprocity, attendants, serv ants and personal emplo yees of theforeigners contemplated in paragraphs (a) o ( c ) ; nd( e ) other prescribed foreigne rs who are dignitaries of a foreign state.( 2 ) The holder of a diplomatic permit may not conduct work. provided that the 25foreigners referred to in subsection ( l ) ( c )may combine such permit with a separatelyissued ~ r ~ r - kermit.Study permit

13. ( 1 ) A study permit may be issued to a foreigner intending to study in the Republicfor longer than threeonths by- 30(a) the Department, as prescribed. or. at the option of the applicant.(b ) the Deparrrnent through the registrarsoffice or a designate d official of aninstitution of learning where theforeigner intends to study. provided that suchinstitution-

( i ) has been approvedbyand is in good standing with the Departrnent; 35( i i ) certifies that it has eceivedguarantees to its atisfaction that suc hforeigner's tuition fees will be paid;

( i i i ) has eceived the prescribed guarantees that such ,foreigner will havesufficient mea ns to support himself or herself while in the Republic;(iv) in the case of a minor. provides the name of a person present in South 40Africa who is, or h as accepted to act, as such minor's guardian while inthe Republic;(v ) undertakes to provide a prescribed periodic ertitication that suc hforeigner is satisfactorily performing his or her cum culu m f study ; and(vi) undertakes to notify the Department when such oreigner has completed 45his or her studies, o r is no longer performing them satisfactorily.


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30 No. 23478 GOVE RNME NT GAZETTE. 3 I MAY 2002Act No. 13,2002 IMMIGRATIONCT . 2002

( 2 )When so requested by, and after consultation with, the Depcrrtrnent of Education,the Department shall determi ne an ad hoc fee for the issuance of study permits in respectof institutions publicly funded or subsidised.(3 ) A study permit does not entitle the holder to conduct w o rk , provided that-fa) a study permit holder may undertake art-time work for eriod not 5exceeding the prescribed period, if the permit holder is attending a highereducation institution;(b ) the work referred to in paragraph ( a )may include temporary or full time workduring the academic vacation periods.( c ) the Department may, in appropriatecases, authorise the holder of astudy 10permit to conduct work as practical training in a field related to that of hi s orher studies.

Treaty permit14. (1 ) A treaty permit may be issued to a foreigner conducting activities i n the(2 ) The treaty permit may be issued by-

(a) the Department, as prescribed or(h i the Department of Foreign Affairs or the other organ ($Stcue responsible forthe mplementation of the reatyconcernedunder a delegation from theDepartment, provid ed that- 20( i ) information relating to the failure of suchforeigner to comply with thetermsand conditions of thepermitand to depclrr when required isconveyed to the Department;(ii) the organ of State concernedsatisfies the Drpartlnent that. under hecircumstances, i t has the capacity to perform this function: and 25

( i i i ) the requirements, procedures and forms for the issuance of such permitare prescribed.

Republic in terms of an internationalagreement to which he Republic is a party. 15

Business permit15. ( 1 ) A business permit may be issued by the D e p u r r wn t to a , f i ) r r i gne r intendingto establish, or invest in. a business in the Republic in which he or she may be cmplo yed. 30and to the members of such foreigner's immediatefutnily provided that-

( a ) suchforeigner invests the pre,scrihrcl financial or capital contribution in suchbusiness:( b ) the contribution referred to in paragraph (u )be part of the intended book valueof such business;(c) a chartered accountant certifies compliance with the provisions of this Act.an d( d ) such foreigner has undertaken to comply with any relevant registrationrequirement set out in any law administered by the S outh African RevenueService.

35

4 0(2) The older of a business permit may conduct work.(3)The Depcfrrnlentmay reduce or waive the capitalization requirements referred toin subsection ( l)(a) for businesses which are prescribed from time to time to be in thenational interest or when so requested by the Department of Trade and Industry.

subsection (l)(c) to be renewed within 24 months of the issuance of the permit, andwithin every tw o years thereafter.( 5 )A business permit may be issued fo r more than one entry to a person if multipleentries into the Republic by that person over a period of time are necessary for thatperson to conduct the business in question effectively.

(4 )The holder of abusinesspermit hall cause thecertification referred to in 45

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32 No. 23478 GOVERNMENT GAZEITE. 3 1 MAY 2002Ac t No. 13,2002 IMMIGRAT ION ACT. 2002

Crew permit16. (1 ) A crew permit may be issued to a foreigner who is a mem ber of he crew of aship by-

(a) th e Department; as prescribed, or( b ) th e Department through the owner of th e ship carrying such mem ber of the 5crew, provided that such owner-( i ) is in good standing with the Department;(ii) has provided he prescribed financial guarante es to the Department toensure com plianc e of such foreigner with the provisions of this Act an dof his or he rermit;nd 10(iii) accepts to be responsible for aprescribed fine, should theforeigner failto honour the terms of such permit.( 2 )A crew permit may be issued on condition that the holder agrees to refrain from

( 3 )Theolde r of a crew permit may not condu ct work. 15moving beyond a predetermined area.

Medical treatment permit17. ( 1 ) A medical treatment permit may be issued to aforeigner intending to receivemedical treatment in the Republic for lon ger than three months by-

( a ) th e Department, as prescribed, or(b ) th e Deparrment through he egistrars office or a designated official of an 20institution where he oreigner intends to receive treatment, provided hat suchinstitution-( i ) has been approved by and is in good standing with the Deparhzent;(ii) ertifies that it has receivedguarante es to its satisfaction that suc hforeigners treatment costs will be paid: 25

( i i i ) in the case of a minor, provides the name of a person present in SouthAfrica who is, or has accepted to act. as such minors guardian while inthe Republic or certifies that such minor will be accompanied by a parentor guardian to the Repddic :( iv ) undertakes to provide a prescribed periodic ertification that such 30,foreigner is under treatment: and(v ) undertakes to notify th e Deporttnent when suc hfhreigne r has completed

his or her treatment,( 2 )When so requested by, and after consultation with. the Depurtmrnt of Health, theDepartment shall determine an ad hoc fee for the issuance of medical treatment permits 35i n respect of institutions publicly funded or subsidised.( 3 )A medical treatment permit does not entitle the holder to conduct w o r k .Relatives permit

IS. ( 1 ) A relatives permit m ay be issued by the Department to ajbre igner who is amember of th e immediate fam ily of a citizen or a resident. provided that such citizen or 40r r s i d mt provides the prescribed financial assurance.(a ) certified by a charrered accountant. or, at the applicants option,( 6 ) to be orroborated by relevant ocumentation toe evaluate d by theDepartrnenr that he or she has the means available to support suchforeigner

for the requested duration of such permit, either personally or through he 45contribution of such foreigner.( 2 )The holder of a relatives permit may not conduct work.Work permit

19. ( 1 ) A quota work permit may be issued by the Department as prescribed to a,foreigner i f the foreigner falls within a categ ory determined by the Minister at least 50annually by notice in the Gazette after consultation with the Ministers of Labour and


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31 No. 23478 GOVERNMENTAZETTE. 31 .MAY 2002Act No. 13,2002 IMMIGRATION ACT. 2002

Trade and Industryand as long as the number of work permits so issued for suchcategory doe s not exceed the q uota determined in the notice.(2 ) A general work permit may be issued by the Department to afore igne r not fallingwithin a category contem plated in subsection (1 ) if the prospective employer-( u ) satisfies the Dep artm ent in the ma nner pre scrib ed that desp ite diligent search 5he or she as een nable to emplo y a erson in theRep~rblic withqualifications equivalent to those of the applicant:(6) produces ertification from a chart ered uccountant that the terms ndconditions under which heor she intends to employ such foreigner. includingsalary and benefits, are not inferior to those prevailing in the relevant market 10segm ent for citizens and residents, taking into account applicable collectivebargaining agree ments and other applica ble standards, as recorded by theDepartment of Labour, if any, provided that-(i ) a copy of such certification shall be conveyed to ap es cr ib ed office of theDepartment of Labour; and 15(ii) such certification shall lapse if objected to for good cause by such of iceof the Department of Labour within 15calendar days of its receipt:(c) has committed to notify he Department when such foreigner is no longeremployed or is employed in a different capacity or role: and( d ) hasubmittedertificationrom charrered ~rcco~~ntmtf the job 20description and that the position exists and is intended to be filled by such

foreigner.( 3 )A general ~ ~ o r kermit contemplated in subsection ( 2 ) hall lapse i f , within sixmonths of its issuance. and within every year thereafter. its holder fails to submit to theDepartn~ent ertification from his or her employer's chNrtered~lt.(.or/t~fC~tlthat he or sh e 25is still employed and of the terms and conditionsof his or her emplo ymen t, including thejob description.(4 )Subject to any pres cribe d requirements. an exceptional skills ~ r w kermit may beissued by the Deptrrrmenr to an individual of exceptional skill5 or qualifications and tothose members of his or her immedia reJur~ rii~etermined by the Depcrrtmenf under the 30circumstances or by regulation.( 5 )An intra-compan y transfer work permit may be issued by the D ~ p ~ ~ r t m e n fo ajiweigner who is employed abroad by a business operating i n the Kepuhlic. in a branch.subsidiary or affiliate elationshipandwho by reason of his o r her employment isrequired to conduct ~ w kn the Republic for a period not exceeding two years. provided 35

(a ) a chartered accountan t acting on behalf of the employer of such ,fbreignercertifies hat the employerneeds to employ suchjbreig nerwithin the Reptbl icand such forei gne r's job description:(b ) the employer undertakes that it will take adequate or prescribed measures to 40ensure that suchfbveigner will at all times comply with the provisions of thisAcr. and will immediately notify the D e p r t m e t ? t f i t has reason to believeotherwise: and(c ) the enzployer furnishes the presc ribed financial guarantees to defray deporta-tion andother costsshouldsuch ,foreigner fail t o dep(r1.t when no longer 45allowed to sojourn in the Republic.

that-

(6 )The holder of an intra-company transfer ~ r * n u kermit may conduct w o r k only forthe employer referred to in subsection ( 5 ) nd in accordance with the jo b description andother elements ontemplated in the certification referred to i n subsection ( 5 ) r set out inhis or her permit. 50

.

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36 No. 23478 GOVE RNM E NTAZEITE. 31 MAY 2002Ac t No . 13,2002

~~~~~ ~~

IMMIGRATION ACT. 2002

Retired person permit20. (1) A retired person p enn it may be issued for a period exceeding three months toaforeigner who intends to retire in the Republic, provided that the foreigner providesproof that such foreigner has-( a j the right to a pension or an irrevocable annuity or retirement account whichwill give such oreigner a prescribed minimum paym ent for the est of his or

her life from the country of his or her origin; or(b) a minimum prescribed net worth.( 2 ) The Department may authorise the holder of a retired person permit to conductwork under terms and conditions as the Department may deem fit to determ ine nder thecircumstances.(3)A retired person permit may-( a ) allow its hold er to sojourn in the Republic on a seasonal or continuo us basis;

( b j not exceed a four-year period, at he expiry of which it may be renewed one orandmore times, subject to subsection ( 1 ) .Corporate perm it

21. ( 1) A corporate permit may be issued by the Department to a corporate clpplicantto employ foreigners who may conduct work for such corporate upplicunt.( 2 )After consultation with the Departments of Labour and of Trade and Industry, theDepartment shall determine the maximum number of foreigners to be employed interms of a corpo rate permit by a corporate applicant. after having considered-the certification prepared by a charteredaccountant on thebasis of therelevant prescription or information of the Department of Labour. if any, thatat any givenim ehe elevant foreigners are mployedon terms ndconditions not inferior to those offered to citizens an d residenrs or prevailingin the relevantmarketsegment. aking into accountcollectivebargainingagreem ents and other standards. if any;the undertaking by the corporate applicant that it will-

( i ) take adequate or prescribed measures to ensure that any foreigneremployed in terms of the corporate permit will at any time com ply withthe provisions of this Act and the corporate permit: and( i i ) imme diately notify the Department if it has reason to believe that suchforeigner is no longer in compliance with subparagraph ( i J above;the financial guarantees posted in the prescribed amou nt and form by thecorporate applicant o defray eportation and other costs hould the corporatepermit be withdrawn, or certain foreigners fail to leave the Rep~rblicwhen nolonger subject to the corp orate permit; andcorroborated representations made by the corporare upplicanr in respect ofthe need to employforeigners. their job descriptions, the number of citizens orresidents employed and their positions. and other prescribed matters.(3 ) The Department may withdraw or modify the corporate permit fo r good andreasonable cause.( 4 ) n consultation with the Minister of Trade and Industry or Minerals and Energy orAgriculture. as the case may be, the Minister of Labour may designate certain industries.or segments thereof, in respect of which the Government may-

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38 No. 23478OVERNMENTAZET TE, 31 MAY 2002Act No. 13,2002 IMMIGRATIONCT ,002

(a) reduce or waive th e requirem ents of subsection ( 2 ) (d); or(b) enter into agreements with one r moreforeign states and set as a conditionofa corporate permit hat its holder-(i) mplo ys oreigne rs partially,mainly or wholly from uchoreign(ii) emits a portion of the alaries of such oreigners to uch oreign

(e) apply his ubsection in respec t of foreigne rs required or season alor(d) waive or reduce the requirement of subsection 2 ) ( c )under special conditions. 10

countries;nd 5countries;

temporary peak period em ployment; or( 5 )The holderof a corporate permitmay also employ foreigners n terms of section19.

Exchange permit22. An exchan ge perm it may be issued by the Departm ent to ajo reigner-

(a ) participating in aprogram me of cultural, conomic r ocial xchange. 15organised or administered by an orga n ofsta te, or a public higher educationinstitution, in conjunction with an organ of a foreign state, provided hat-after onsulta tion with the Board, the Minister may delegate theauthority to issue such permits to suc h orga n of Stare if such orga n ofState has satisfied the Min ister that it can ensure the compliance of such 20foreigner with this Act and report to the Deparrmentn the sta ges and thecompletion of the relevant programme together with other prescribe dinformation;it maybe prescrib ed that, in respect of certainprogrammes,uponexpiratio n of such permit suchfo reigner may not qualify fo r a sratus u n t i l 25he or she has complied with the requirement of a prescribed period ofphysical presence in his or herforeign countp or of domicile outside heRepublic; or(b) who is under 25 years of age and has receive d an offer to conduct work for nolongerhan one year,rovided that- 30

(ii)(iii)

Asylum

the prospectiveemployercertifies that heposition xists. nd hascommitted himselfor herself to-( u a ) pay such foreigner remuneration which complies with applicablelegal requirements;(bb) provide for the welfare and the nee ds of suc hfim ign er while in the 35Republic under the aforesaid permit; and( c c ) report to the Department the failuref theforeigner to comply withthe term s of his or her permit or r o depart when so required;such foreign er may not co nduct work other than rrwrk for which thepermitsssued; and 40suchforeigner may not qualify for a temporaryor permanent residencepermit until he or she has spent two years outside the Republic, whichrequirem ent may be waived by the Departm ent in extraordinarycircumstances.

4523. The Department may issue an asylum permit to an asylum seeker subject to theRefugees Act, 1998 (Act No. 130 of 1998), on an y prescribed terms and conditions.


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40 No . 23478 GOVERNMENT GAZETTE, 3 1 MAY 2002Act No. 13,2002

~

IMMIGRATION ACT, 2002

Cross-border and transit pa sses24. (1 ) The Department may issue a cross-border pass with the same effect as amultiple admission visitor's permit to oreigner who isa citizen of aprescribed foreigncountty with which the Republic shares a border and who does not hold a passport bu thas received a prescribed identity documen t by the Department an d is registered with 5th e Department.

foreign country to make use of the transit facilities at a ort of entry.( 2 ) The Department may issue a transit visa authorising a foreigner travelling to aPERMANENT RESIDENCE

Permanent residence 1025. (1) The holder f a permanent residence permit as ail the rights, privileges, dutiesand obligations of a citizen, save for those rights, privileges, duties and obliga tionswhich a la w or the Constitution explicitly ascribes o citizenship.( 2 )Subject to his Act,upon application, one of the permanent residence permits setou t in sections 26 an d 27 may be issued to a foreigner. 15(3)A permanent residence permit s to be issued on condition that the holder is not aprohibited person, and subject to section 8 of this Act.(4) For good cause, as prescribed, th e Department may attach reasonable individualterms and conditions to a permanent residence permit.

Direct residence 2026. Subject to section 5 , the Department shall issue a permanent residence permit to

( a ) has been the holder of a work permit, includin g one issued under a corporatepermit. in terms of this Ac t for iveyears and has received an offer forpermanentmployment,rovided that- 25(i ) such foreigner submitted a certification from his or her prospectivepermanent employer's chartered accountant of the job description andthat the position exists ands intended to be filled by suc h foreigner; and

(ii) the Department of Labour certifies that the terms nd conditions of suchoffer, including salaryand benefits, are not inferior to those prevailing n 30the elevantmarket segment or citizens an d residents, taking ntoaccount applicable collectiveargaining agreements and other standards;( i ) the Departmenr is satisfied that a good faith spousal relatio nship exists ;and 35( ii) such permit is issued on condition thatt shall lapse if at any time withinthree years from its application the good faith spousal relationship nolonger subsists, save for the case f death;

(c) is a child of a citizen or resident under the age f 21, provided that such permitshallapse if such foreigner does not submit an application forts 40confirmation within two years of his or her having turned 2 I years of age; or

a foreigner wh-

( 0 ) is the spouse of a citizen or residenf, provided that-

(d l is a child of a citizen.Residenceon other grounds

27. Th e Departtnent may issue a permanent residence permit toa foreigner of goodand sound character w h o - 45


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42 No. 23478 GOVE RNM E NT GAZETTE. 3 1 MAY 2002Ac t No . 13,2002 IMMIGRATION ACT. 2001

( a ) has received an offer for permanent employment, provided that-( i) such foreigner submittedacertification roma chartered uccountcrntacting on behalf of such oreigner's prospective permanent e t n p l o y ~ha tthe position exists and that the position and related job description wasadvertised in the prescribed form and no suitably qualified citizen orresident was available to f i l l it:( i i ) the Department of Labour certifies hat the terms and conditions of such

oiTer, including salary and benefits, are not inferior to those prevailing inthe relevant market segm ent forcitizens or residents, taking into accountapplicable collective bargaining agreements and other standards. if any:( i i i ) the application falls within the yearly limits of available ermitsprescribed from ime to time or eachsector of industry. tradeandcom merce , fter consultation with the Departtnents of Trade andIndustry, Labour and Education; and(iv) the permit may be extend ed o such foreigner's spouse and childrenyounger than 21 years of age:( b ) taking into account any prescribed requirement.ha sdemonstrated to thesatisfaction of the Depurtmenr extraordinary skills or qualifications. and tothosemembers of such foreigner's i tnrnrdiate fandy determined by theDepcwtmenr under the circum stanc es o r by regulation:

( c J intends to establish a business in the Republic investing in i t the pwscrihedfinancial contribution to be part of the intended book value as certified by achartered accountant. and to themembers of such ,ji)r.eigtwr's itntnedirrref n ~n i l y . rovided that-( i ) the Departr?zenrmay waive or reduce such capitalisation requirementsfor businesses prescribed from time to time to be i n the national interestor when so requested by the Department of Trade and Industry: and( i i ) the permit shall lapse if the holder fails to renew such certification within

two years of the issuance of the permit. and three years thereafter:( d l is a refugee referred to in section 27(c)of the Refugees Act. 1998(Act No. 130of 19981,subject to any prescribed requirement:( e ) intends to retire in the Republic, provided that a churtcred ~ ~ c c o ~ m r u n rcting

on behalf of such foreigner certifies that suchfimigner-( i ) has the right to a pension or an irrevocable annuity or retirement accountwhich will give such foreigner a prescribed minimu m payment for therest of his or her life; or(ii) has a minimu m prescribed net worth:

IfJ has provided a certification by a charrered u c c o wm ~n r hat he or she ha5 aprescribed minimum net worthand has paid a prescribed amount to theDeparttnent: or( g ) is the relative of a cirizen or resident within the first step of kinship.

Withdrawal of permanent residence28. The Deparrrnent may withdraw a permanent residence permit if its holder-


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44 No. 23.478 GOVE RNM ENT GAZETTE, 3 1 MAY 2002Ac t No. 13,2002 IMMIGRATION ACT, 2002

(a ) within four years of the issuancef such permit, has been convicted of any ofthe offences listed in Schedule 1;(b) has been convicted three times of any of the offences listed in Schedules 1 and2:(c) has been absent from the Republic for more than three years, provided that- 5(i) upon showing good cause and upon prior application the Department

(ii) the ime when such holder-may ex tend this period in specific cases;( a a ) was residing abroad while in the service of the State;(bb)wa s residing abroad while a representative or employee of a person 10or association of persons resident or established in the Republic;( c c ) was residing broadwhile in the service of an internationalorganisation of which the Sta te is a member;( d d ) in the case of the spouse or dependent child of a person referred toin subitem (aa),( b b ) r ( c c ) , uch spouse or child was residing with 15such person; or( e e ) in the case of the spouse or dependent child of a person who is aSouth African citizen, such spouse or child was residing with suchperson,shall not be computed within such period:(iii) the Minister, on recommendation of the Direcror-General. may grant anexemption from the requirement of residence in respect of certainresidents or class of residents;(iv) theperiod of absence may only be interrupted by an adrnission an dsojourn in the Republic; and 25

(v ) theequiremen t of residence in the Republic shall not affect anyforeigner to who m exemption has been granted under section3 (2)(h) sa member of a category of persons. unless such foreigner previouslyentered the Republic or sojourned therein for the purpose of permanentresidence under the authority of such exemption; or( d ) has not taken up residence in the Republic within one y ear of the issuance of

20

30such permit.

EXCLUSIONS AND EXEMPTIONSProhibited persons

29. ( 1 1 The following foreigners do not qualify or a temporary or a permanent 35residence permit:( a ) those infected with infectious diseas es as prescribed from time to time:(b ) anyone againstwhom a warrant is outstanding or a conviction hasbeensecured in the Republic or a fore ign countn with which the Republic hasregular diploma tic relations in respect of genocide. terrorism, m urder, tortu re, 40drug trafficking , money laundering or kidnapping;

prescribed manner;practice of racial hatred or socialiolence;nd 45association utilising crime or terrorism to pursue its ends.

( c ) anyon e previously deported and not rehabilitated by the Depurtment in the( d ) a member of or adherent to an association or organisation advocating the( e ) anyone who is or has been a member of or adherent to an organisation or


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46 No. 23478 GOVERNMENTAZETTE. 3 MAY 2002Ac t No. 13,2002 IMMIGRATION ACT. 2002

( 2 ) After consultation with the Direc tor-G eneral . for good cause the Minister maydeclare a person referred to in subsection (1) not to be a prokibired persorl.Undesirable persons

30. ( 1 ) The follow ingfo reign ers may be declared undesirable by the Depc~rtmenr asprescribedanyone who is or is likely to become a public charge:anyone identified assuc h by the Mirzisrer after consu ltation with the Board. orin the case of urgency, by the Mitzister who, in such cases. shall inform theBoard as soon as practicable:anyone who has been judicially declared incompetent:an unrehabilitated insolvent:anyone who has been o rdered to dep art in terms of this Act:anyone who is a fugitive from justic e; andanyone with previous criminal conv iction s without the option o f a fine fo rconduct which would be an offence in the Rephlic. with the exclusion ofcertain prescribed offences.(2 ) Upon app lication from the ffected person, the Deprrrttnerzt may waive any of thegrounds of undesirability provided that it reports such decisions to the Mirzisrer and theBourd. with reasons.

Exemptions31 . ( I ) The following persons or categories of persons are not illeScl1,forrigllers:

( ( I ) B member of a military force ofaforeigrl s t m which has been granted consentby the Governm ent of the Republic to enter the Rrp1)lic. while such consentsubsists: and( 0 ) the officers and cr ew of an official ship of afbre ign s t n r e . whilc such ship is inport.( 2 )Upon upp lication , the Mitzister, as he or she deem s fit. after consultation with theBoard, may under terms and con ditions determined by him or her-allow a distinguish ed visitor and certain mem bers of his or her inrtnediclrefurnil? and members in his or her employ or of his or her household to beadmitted and sojourn in the Republic for a period not exceeding six months.provided that s uch oreign ersdo not intend to reside in theRepublicpermanently;grant a foreign er or a category offoreigtzers the rights of permanent residencefo r a specified or unspecified period when special circum stance s exist whichjustify such a decision : provid ed that the Millister may-(i) exclude one or more identifiedforeigrwrs from such categories: and(ii) for good cause, withdraw such right from afore ign er or a category of

authorise any person or category of persons to enter the Republic at a placeother than a port ofentt?, in which case the D ep arm en t shall issue t o suchperson(sl the prescribed writtenermission or p m v p n r t endorsement.provided hat such authorisation may bewithdrawn at any ime by theMinister; and

foreigners;

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48 No . 23478 GOVERNMENTAZETTE, 3 1 MA Y 2002Act No . 13,2002 IMMIGRATIONCT , 2002

(d) for goo d c ause , waive any prescribed requirement or form,provided that if such consultation requi reme nt would unduly delay anurgent actio n, theMinister may inform the Board after the factof any action taken under this subsectionand of the reasons fo r the urgency.ENFORCEMENT AND M ONITORING 5

Illegal foreigners32. (1) Any illega l foreigner shall depart, unless authorised by the Department to( 2 )Any illegal foreigner shall be deported.remain in the Republic pending his or her application fo r a status.

Inspectorate 1033. (1) An inspectorate s hall be established through regulations and shall consist of(2 ) On the recomm endation of the Director-Gen eral, the Minister shall appoint the(3)Th e inspectorate shall inves tigate any matter falling within the scop e of this Act, 15

such persons, including immigration officers, as may be determ ined by the Minister.head of the inspectorate.sub ject to the directions of the Minister, and shall in the performa nce of its func tionsfollow such procedure as may be prescribed.(4)An imm igration officer may, for the purposes of this Act-( a ) at any time before the commen cement or in the course of an investigationconductn inspection in loco; 20( 6 ) by notice in writing call upon any person who is in possession of or has thecustody of or control over any thing which in the opinion of the Departmentis relevant to the investigation to produce such thing, nd the Departmentmayinspect and retain any thing so produced for a reasonable time; and( c ) by notice in writing call upon any person to appear before the Department and 25to give evidence or to answ er que stion s relevant to the subject matter of theinvestigation,provided that any of su ch notices shall specify the time when and the place wh ere theperson to whom it is directed shall appear, be signedy an immigration officer, be serv edby an immigration officer or by a sheriff by delivering a copy thereof to the person 30concerned or by leaving it at such persons last known place of residence or business,and shall specify the reason why the article is to be produced o r the evidenc e is to begiven.(5 ) In the pursuance of this Ac t, an immigration officer may obtain a warrant t o -( a ) enter or searchan ypremises fo r a person or thing or to make inquiries, 35including the power to-(i) examine any thing found in or upon such premises;(ii) request from the person who is in control of such premises or in whosepossession or under whose control any thing is when it is found, or w hois upon reasonable grou nds believed t o have information with regard to 40such thing, an explanation or information: and

premises;(iii) make copies of or extracts from any such thing found upon or in such( 6 ) apprehend an illegal foreigner, subject to section 34(1) ; or


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(c) after having issued a receipt in respect thereof, seize and remove docu men -tation o r any othe r thing which-( i ) is concerned with or is upon reasonable grounds suspected of beingconcerned with any matter which is the subject of any investigation i nterms of this A c t ; or( i i) contains, or is on reasonable grounds suspected to contain. informationwith regard to any such matter,

provided that-( a n ) any thing so seized shall be returned in good order as soon as possible afte r the(bb)a person from who m a book or docu men t has been taken shall be allowed

(6 ) A warrant referred to in subsection (5 ) shall be issued by a magistrate of a Courtwhich has jurisdiction in the area wh ere the premises n question are situated. and onlyif it appears to themagistrate from information on oath that there are reasonablegroundsfor believing that a thing mentioned in subsection ( 5 ) s upon or i n such p'ernises.andshall specify which f the actsmentioned in subsection (5)may be performed thereunderby the person to whom it is issued.(7 ) A warrant ssued in terms of this section shall be executed by day unless themagis trate wh o issu es the w arrant auth orises its executio n by night at times Lvhich shallbe reasonable. and any entry po n or search of any prernises in terms of this section shallbe conducted with strict regard to decency and order. including-( 0 ) the right of a person to freedom and security; and( c ) the right of a person to his or her personal privacy.

purpose of its s eizure has been accomplished; andreasonable a ccess, including the right to make copies at his or her expense.

a person's right to, respect for. and the p rotection of, his or her dignity;

(8) A person ex ecutin g a warrant in terms of this section shall immediately before( ( 1 ) identify himself or herself to the person in control o f the prc~~ni .ve .s .f suchperson is present, and hand to such person a copy o f the warrant or. if suchperson is not present. affix such copy to a prominent place on the prcwi.\c.s:and( h ) supply such person at his or her request with particulars regarding his or hcrauthority to execute such a warrant.( 9 ) t r l An immigration officer may. without a warrant. enter upon any p r . c ~ r ~ i . w s ,ther

than a private dw elling, and exercise the powers referred to in subsection ( S ) ( a ) andf c)-( i ) if the person w ho is competent to do so cons ents to such cntry. search. seizure

( i i ) if he or she upon reasonable grounds believes that-

commencing with the execution-

and removal: orfaa) the required warran t will be issued to hi m or her i n terms o f subsectionfbhl the delay cause d by the obtaining of any such warrant would defeat the

(b )Any entry and search n terms of paragraph ( ( 1 ) shall be executed by day. unless theexecution thereof by night is justifiable and necessary.(10) l a ) Any person who may on the authority of awarrant issued i n terms ofsubsection (5). or under the provisions of subsection (9) . enter upon and search anypretnises. may use such forceas may be reasonably necessary to overcome resistance tosuch entry or search: andf b ) No person may enter upon or search any pre~uises nless he or she has audiblydemanded access to the premises and has notified the purpose of his or her entry. unlesssuch person is upon reasonable gro und s of the opinion that any thing may be destroyed

( 5 ) f he or she were to apply for such warrant: andobject of the entry, search, seizure and removal.

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or a person put at riskf bodily harm if such access is irst demanded and such purposeis first notified.(11) If, d uring he execu tion of a warrant or the conductingf a search n terms of hissection, a person claims that a thing found on or in the premises concerned containsprivileged information and refuses its inspection or removal, the person executing thewarrant or condu cting the search shall, if he or sh e is of the opinion that the thingcontains information which is relevant to the investigation andhat such information isnecessary for he nvestigation, request a person designated by a Court which hasjurisdiction to seize and remove that thing for safe custody until a Court has made aruling on the question whether the information concerned s privileged or not.(1 2 ) A warrant issued in terms of this section may be issued on any day and shallein force until-( a ) it sexecuted;( b ) it is canc elled by the person who issued it or, if such person is not availa ble.( c ) the expiry of one m onth from the day of its issue; or( d ) the purpose for the issuing of the warrant has lapsed,

by a person with similar authority;

whichever may occur first.(13) In onsultationwithhe Minister an dhrough iplomatic hannels,heDepartment may obtain permission from the relevant authorityof a foreign country toreceive evidence or gather information in or from that country.(14) When exercising powers under this section, an immigration fficer shall clearlyidentify him or herself as suchby means of adequate identification.

Deportation and detentionf illegal foreigners34. (1) Without need for a warrant, an mmigration officer may arrest an illegalforeigner or cause him or her to be arrested , and shall. irrespective of w hether suchforeigner is a rrested, deport him or he r or cause him or her to be deported and may,pending his or he r deportation, detain him or her or causehim or her to be detained ina manneran dat heplaceunder hecontroloradministration of the Deparrmentdetermined by the Director-General, provided that the oreigner concemed-

(a) shall be notifiedn writing of the decisiono deport him or her nd of his r he rright to appeal suc h de cision in terms of this Act;( b ) may a t any time request any officer attending to him or her that his or herdetention for the purpose of eportation be confirmed by warrant of a Court,which, if not issued within 8 hours of such request,hall cause the immediaterelease of such foreigner;( c ) shall be informed upon arrestor immediately thereafter of the rights set out inthe preceding two paragraphs, when possible, practicable and available in alanguage that he or she understands;f d ) ma ynotbeheld in detention or onger han30calendardayswithoutawarrant of a Court which on good and reasonable groundsmay extend suchdetention for an adequate period not excee ding 90 calendar days, and( e ) shall be held in detention in compliance with minimum prescribed standardsprotecting his or her dignity and relevant human rights.

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( 2 )The detention of a person in terms of this Act elsewhere than on a ship and forpurposes other than his or he r deportation shall not exceed 48 hours from his or herarrest or the time at which such person was taken into custody for examination or otherpurposes. provided that if such period expires on a non-court day it shall be extended tofou r p.m. of the first followingourt day. 5(3 ) The Department may order aforeigner subject to deportatiou to deposit a sumsufficient to cover in whole or in part the expens es related to his or her deporrarinn.detent ion, maintenance and custody and n officer may in the prescribed manner enforcepayment of such deposit.shall be guilty of an offence and liable on conviction to a tine not exceeding R20 000 orto imprisonment not exceeding 12 months.

(4) Any person who fails to comply with an order made in terms of subsection ( 3 ) 10

( 5 )Any person other than a citizen or a resident who having been-(cz) removed from the Republic or while being subject to an order issued under alaw to leave the Republic, returns thereto without lawful authority or fails to 1icomply with such order: or

entered the Republic,( b ) refused admission, whether before or after the commen cement of his Act.hasshall be guilty of an offence and liable on conviction to a fine or to imprisonment for aperiod not exceeding 12 months and may, i f not already in detention. be arrested without 70warrant and deported under a warrant issued by a Court and, pending his or her removal.be detained in the m anner and at the place determined by the Director-General.(6)Any illegal foreigne r convicted and sentenced under this Act may be deportedbefore the expiration of his or her senten ce and his or her imprisonment shall terminateat that time. -_i(7 ) On the basis of a warrant for the removal or release o f a detained i1legcrlj)reigner.the person in charge of the prison concerned shall deliver such foreigner to thatimmigration officer or police officer bearing such warrant. and if such j )ruigner is notreleased he or she shall be deemed to be i n lawful custody while i n the custody of theimmigration officer or police officer bearing such warrant. 30( 8 )A person at aporr of enrry who has been notified by an im migration officer that heor she is an illegal foreigne r or in respect of whom the immigration officer has made adeclaration to the master of the ship on which such,fo reigne r arrived that such person isan illegal foreigner hall be detainedby the master on such .ship and. unless such m m e ris informed by an immigration officer thatsuch person has been found not to bean 35illegal foreigne r, such master shall remo ve such person from theRepuhlic. provided thatan immigration officer may cause such person to be detained elseLvhere than on suchship, or be removed in custody from such ship and detain him or her o r cause him or herto be detained in the manner and at a place determined by the Dituctor-General.while detained as conte mpl ated in that subsection. be deemed to be i n the custody of themaster of such ship and not of the immigration officer or th e Departtnenr, and suchmuster shall be liable to pay the costs of the detention and maintenance of such personwhile so detained if the master knew or should reasonably have known hat such personwas an illegal foreigne r. provided that- 35

(9) Th e person referred to in the preceding subsection shall. pending removal and 10


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if such master fails to comply with the provisions of th at subs ection, or ifrequired to pay such cos ts, such master or theowner of such ship shall forfeitin respect of every person concerned a sum fixed by the immigration officer,not exceeding an amount prescribed from time to time;the immigration officer may, before such person is removed from such ship,require the master or the owner of such ship to deposit a sum sufficient tocover any expenses that may be incurred by the Department in connectionwith the deportation, detention, maintenance and custody of such person, ifthere are grounds to believe that the master knew or should reasonably haveknown that such person was an illegal foreigner ;if such person is not removed from the epublic on the ship on which he or sh ewas conveyed to the Republic, except by reason of not being an illegalforeigner, and if the master knew or should have known that such person wasan illegal foreigner, the owner of that ship shall at the request of animmigration officer convey that person, or hav ehim or her conveyed, free ofcharge to the State to a place outside theRepublic, and any person, oth er thanan immigration officer, charged by the Department with the duty of escortingthat person to such place, shall be deem ed tobe an immigration officer whileperforming s uch duty; andif the o ~ ~ n e rf such ship fails to comply with th e provisions of this section. heor he shall forfeit in respect of each uch persona sum fixed by theimmigration officer, not exceeding a n amou nt prescribed from time to time.( I O ) A person who escapes or attempts to escape from detention im posed under thisAct shall be guilty of an offence and may be arrested without a warrant.

Ships35. ( 1) Save forextraordinary circumstances necessitating otherwise, no master shallcause his or he r ship to enter the Republic by landing or shoring at any placeother thana port cf'entl?..( 2 )An imm igration officer or other authorised person emp loyed by the Departmentmay-

( a ) board any ship which is entering or has entered into any port and for goodcause prohibit or regulate disembarkation from, or the offloading of. such shipin order to ascertain the status or citizenship of its passengers; and( b ) request the person in control of a port of ent? or any person actin g under hisor her authority to order the master to moor or anchor is or her .ship in suchport at such distance from the shore or landing place or in such position as heor she may direct.

(3 ) The master of a ship entering a porr of entry upon demand shall deliver to animmigration officer-( a ) a list stating-( i ) the names of al l passengers on board the ship, classified according to( i i ) such other details prescribed from time to time;their respective destinations; and

( b ) a list of stowaways. if any have been found;

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( c ) a list of the crew and all other persons, oth er than passengers and stowaw ays,( d ) a return. under he hand of the medical officer of that ship or. i f there is no suchemployed. cam ed or present on the ship; an dmedical officer, under the hand of th e muster himself o r herself, stating-(i) any ases of disease,whethernfectious or otherwise, which have 5

( i i ) the names of the persons who have suffered or are suffering from such(iii) details of any birth or death which occurred upon the voyage between( iv ) any other prescribed matter or event,

occurred or are suspected to hav e occurred upon the voyage;disease;such port andrevious port: and I O

provided that such immigration officer may-(no) exe mp t from the requiremen ts of this subsection the ma.ster of a ship destinedfor any other port in the Republic, subject to compliance with the duty todeliver such lists or return at such ort and with any directive such 15immigration officer may issue to the master; and

authorise such addition or deletion.(661 if satisfied that a n ame should be added to or deleted from any of such lists,(4 ) f a ship arrives at a p o r t o f e n t n ith a passenger on board bound for a destinationoutside the Republic who is not on board when the ship leaves such port and has not been 70admitted. the rnasrer or the obt'ner of that ship shall orfeit um ixed by the

immigration officer within a prescribed limit.( 5 )An immigration officer may require the master of a ship to muster the crew f suchship o n the amval of such ship in any port c f l e n t q and again before i t leaves such port.( 6 ) he competent officerof customs at any harbour may refuse to give to the rnnster 25of any . s h i p clearance papers to leave that harbour unless he or she has complied with theprovisions of this Act and produced a certificate of an immigration of fice r to that effect.(7) A rnnster shall ensure that any foreigner conveyed to a por t of e n r n for purposesof traielling to a fo re ig n c o m t n holds a transit ltisa. if required.

Monitoringntriesn Republic and exits 3036. ( 1 ) The Depnrrmenr shall control the entry and exit of people throu,h the hordersof the R e p r h l i c in order to ensure compliance with t h i s Act. and may do so with the

assistance of other organs of State.( 2 ) The D e p a r m r n l may receiveadelegation rom the SouthAfrican RevenueService or the Commissioner therefor, the Depurtrnerzt of Safety andSecurity. he 35Drpr-frnenrof Defence or the Deparrmenr of Finance enabling and mandating i t toexercise powers and perform function s exercised or performed under any law by any ofsuch Deptrrtnwnts relating to the control of movement of people or goods across theborclrr-s. including ports of entry.of the Doprrrtrnerlr allocated to the control of entry and exit be placed under the controlof the Mi/lr.ster of Defence to be deployed as determined by the Prrsidrrlr i n terms ofsection 301 of the Constitution.

13) By proclamation. the President may order that certain assets and human resources 40


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IMMIGRATION COURTSImmigration Courts

37 . (1 ) Every magistrates court is n Immigration Court for the purposes f this Actand shall have urisdiction on any matter arising from he application of this Act,including,ut not limited to- 5(a) the review of decisions of the Departm ent;(6) any legal proceedings against the Department; and( c ) any matterconcerningstatus.

( 2 )Any legal proceedings arising from the applicationf rhis Act shall be dealt withas soon as is reason ably possib le and the Courts mu st ensure that such proce edings are 10finalised without any unavoidable delay.The Rules Board for Courts ofaw established in terms of the Rules Boar d of Courtsof Law Act, 1985(Act No. 107 of 1985), shall as soon as reasonably possible after thecomm encement of this Act make rules aimed at facilitating the adjudication of anymatterrising from this Act in a simplifiedndxpeditiousanner. 15DUTIES AND OBLIGATIONS

Employment38. ( 1) No person shall employ-(a ) an illegal foreigner;( b ) ajore ign er whose status does not authorise him or her o be employed by such 20

( c ) a oreigner on terms. ondition s or in a capacitydifferent romhose( 2 ) An employer shall makea good faith efforto ascertain thatno illegal foreigner is

person; orcontemplated in suchforeigners status.

emp loyed by him or her or to ascertain the status or citizenshipf those whom he or sh e 25employs.(3) I f i t is proven, oth er than by means of the presumption referred to in subsection( 5 ) . hat a person was em ployed in violation of subsection ( I ) , it shall be presumed thatthe e m p lo ~ er new at the time of the employmen t that such person was among thosereferred to in subsection ( l ) , unlessuc hmployer roveshat he or she- 30(a ) employed such person in good faith; and( b ) complied with subsection (21, provided hatastrictercomplianceshall berequired of any employer who employs morehan five employ ees or has beenfound guilty of a prior offenceunder this Act related to this section.(4)A n employermployingforeigner shall- 35

( a ) for two years after the termination of such foreigners employment, keep the( b ) report to he Department-prescribed records relating thereto: and( i ) the termination of suchforeigners emplo yment; and( ii) any breach onhe sidefheforeigner ofis or her s t a tu s . 40( 5 ) f an illegal foreigner s found on any premises where a bu sinesss conducted. i tshall be presumed that suchforeigner was employedby the person whohas control oversuch premises. unless prima facie evidence to the contrary is