The regulations – which affect both visitors and immigrants to South Africa – pertain to visa applications for temporary or permanent stay, as well as to foreigners seeking to establish businesses in South Africa. According to the Minister of Home Affairs, the regulations are intended to put South Africa on par with the rest of the world. However, these regulations are not without controversy, particularly when viewed through a constitutional lens.

The regulations, read with the Immigration Act (13 of 2002) (the Act), stipulate that various institutions including banks, estate agents and private hospitals, should ascertain whether foreigners are in the country legally. Should their immigration status be illegal, then such institutions are obliged to inform the Director General. In principle, there is nothing wrong with that. While this mandatory reporting provision should be balanced against other professions’ mandatory reporting requirements (such as doctors being obliged to report suspected child abuse), this duty to report illegal foreigners may impact the right to access healthcare as envisioned in section 27 of the Constitution. It also tends to remind one somewhat of a police state. Nonetheless, from time to time it may be necessary to differentiate between people and groups of people in order to allocate rights, however this classification must meet section 27(2) of the Constitution which calls for reasonableness in such differentiation. The differentiation “must not be arbitrary or irrational nor must it manifest a naked preference“. There should also be a rational connection between the differentiating law and the legitimate government purpose it is designed to achieve. A differentiating law which fails to meet the standard will be unconstitutional. Arguably the regulations in this regard do not meet the reasonableness standard and may thus be unconstitutional.

The fear of deportation may cause illegal foreigners in need of health care to avoid hospitals and clinics, which may have obvious consequences for their wellbeing. Although the government’s concern that such non-citizens could become financial burdens on South Africa is not unfounded, the possible denial of healthcare (although an unintended consequence of the regulation) may well be unconstitutional. 

The regulations also require people to prove that they have been in a relationship with their foreign spouse or life partner in order for the foreign partner to qualify for a visa. In addition, the regulations require that a foreigner married to a South African should return to their country of origin in order to apply for a visa. These requirements affect the right to family life. This right is not expressly mentioned in the Constitution, but is recognised in international treaties such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (which South Africa has signed and ratified), thus requiring the government to comply with their provisions in terms of sections 231 and 233 of the Constitution.

Another troubling aspect of the regulations – which has an impact on the right to family life –  is that in applying for a spousal visa or permit, an applicant has to submit proof that the relationship still exists “to the exclusion of any other person“. Marriages concluded under customary law and certain religions are potentially polygamous. As such, by definition, spouses whose marriages were concluded in terms of the latter are excluded from this provision as the unions are certainly not “to the exclusion of any other person“. Taking into consideration the spirit, purport and objects of the Bill of Rights this exclusion may amount to an unjustified limitation of rights, which may exceed the limitations anticipated in section 36 of the Constitution.

The new regulations result in people who have been waiting for the Department of Home Affairs to finalise the application for new visas to be declared as undesirable persons should they leave the country. Prior to the regulations coming into force, one could leave the country and re-enter by showing a receipt of pending application to prove that an application to extend a visa or to change status had been made. This provision may leave applicants between a rock and a hard place – facing the possibility of being illegally present in South Africa, or being declared “undesirable” when leaving the country before the application was finalised.

It is accepted that South Africa must manage and regulate the movement of non-nationals across its borders through legislation and regulation. However, South Africa’s right to regulate such movement must be in accordance with both international law and the Constitution. Moreover, in an era characterised by global migration, one would expect a government to make it as easy as possible for skilled professionals to bring their expertise to South Africa. However, the regulations – as they stand – appear not only to fail the constitutionality test because they do not take into account the above-mentioned constitutional values, rights and principles, but also seem to be an exercise in bureaucracy belonging to the previous century.

By Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

Photo credit: DFID – UK Department for International Development / Foter CC BY-NC-ND