The Department of Home Affairs restricts short-term work to 180-days per calendar year

Foreign nationals who are required to conduct short-term work in South Africa in circumstances which do not necessitate applying for one of the available categories of work visa require a Visitor’s Visa (issued in terms of Section 11(1)(a) of the Immigration Act 13 of 2002 (as amended) (“Act”)) with an authorisation to conduct work endorsed thereon in terms of Section 11(2) of the Act (“Visitor’s Visa 11(2)”). The initial visa, known as a Port of Entry Visa to permit a sojourn in the country on a Visitor’s Visa 11(2), is applied for at the South African Diplomatic Mission in the foreign national’s country of citizenship or ordinary residence (including long-term temporary and permanent residence) and it provides for an intended stay of up to 3 months (90 days) in the first instance, or any lesser period, depending on the required period of stay. The Visitor’s Visa 11(2) may be renewed for a further maximum period of 3 months (90 days) from within the country, thus allowing a total work stay of up to 6 months in total.

There is no legislated cap on the number of Visitor’s Visa 11(2)s which a foreign national may be issued within any specified time-frame, nor is there any “cooling-off” period which must be fulfilled before a new visa may be applied for. It is, however, important to note that a Visitor’s Visa 11(2) is not intended to provide for ongoing/continuous work in the country.

New Departmental Policy

The Acting Deputy Director General of the Department of Home Affairs (“DHA”) has issued an Immigration Directive internally and to the South African Missions abroad to the effect that a foreign national may not conduct work in South Africa for more than 180 days in any calendar year on a Visitor’s Visa 11(2). The instruction provides as follows:

1. Any foreign national who has been issued with a Visitor’s Visa 11(2) to permit a sojourn in the country of 90 days and who applies for a 3-month renewal from within the country shall not qualify for a new visa or a visa renewal within the same calendar year.

2. If the validity of the Visitor’s Visa 11(2) extends into the next calendar year, then the days falling within the new year shall accrue toward the 180-day period for that year.

3. Back-to-back Visitor’s Visa 11(2) applications, i.e. an application for a second visa immediately after the expiry of the period of stay provided for by the first visa, within the same calendar year, by the same foreign national, shall not be accepted.

4. Visitor’s Visa 11(2) renewal applications for up to 3 months from within South Africa shall only be accepted once per calendar year.

Analysis

Whilst it seems reasonable for the DHA to attempt to restrict the use of the Visitor’s Visa 11(2) option to curb abuse, the imposition, by means of an Immigration Directive, of a 180-day short-term work allowance within a calendar year cycle is beyond the scope of the law. To lawfully achieve such a restriction, the DHA would, at the very least, have to amend the Immigration Regulations to include such provisions. That being said, unless or until it is successfully challenged to change its policy, it will likely implement the above and companies with resources who are required to travel frequently for extended periods should anticipate challenges. In the majority of cases we deal with, 180 days within any calendar year is sufficient.

The underlying visa category is that of a Visitor’s Visa issued in terms of Section 11(1)(a) of the Immigration Act. The said section only limits the validity of the first visa to a maximum period of 3 months in the first instance and a renewal, upon application, to a further maximum period of 3 months. A Visitor’s Visa is not a substitute for one of the available categories of work visa (Intra-Company Transfer, Critical Skills and General); therefore, foreign nationals being formally transferred to take up positions within branch, subsidiary or affiliate companies or organisations within South Africa, or those seeking to take up employment directly with them, must apply for appropriate work visas where applicable.

The authorisation to conduct work endorsed on the Visitor’s Visa, which is issued pursuant to section 11(2) of the Act, is applied for, including a statement/documentation explaining the purpose and necessity of the work, its nature, duration and location (place), qualifications and skills required, the duration of the visit, proof of the remuneration or stipend the foreign national will receive and it must be accompanied by the identity and contact details of the prospective employer or contact person from the host institution and may be subject to the relevant individual terms and conditions including, but not limited to, limitations on the type of activities that may be undertaken, the types of commercial activity that may be practised and limitations on the period of the visit, or the validity of the visa.

The DHA must consider each application submitted to it based on its merits; therefore, any refusal on its part to accept a complete application for a Visitor’s Visa 11(2) which satisfies all prescribed requirements, or to approve a subsequent application or renewal application simply because a foreign national has already held a Visitor’s Visa 11(2) or previously been issued a renewal of same, within any calendar year, would be unlawful. Rather, it is legally compelled to accept the application, adjudicate it and if, for whatever lawful reason(s), it concludes that the foreign national does not qualify for the visa, it may reject the application, providing adequate reasons for its administrative decision. The foreign national may then appeal or request a review of the decision by the Director General of the DHA.

General Information 

The definition of “work” in the Act is restrictive and extends to include conducting any activity normally associated with the running of a specific business or being employed or conducting activities consistent with being employed or consistent with the profession of the person, with or without remuneration or reward. It follows that a Visitor’s Visa 11(2) is required for numerous short-term work activities including, but not limited to, consulting and other professional advisory services, project-related work, IT systems/software implementation and technical support, internal audits and corporate review processes, the installation/service/repair of machinery and training (facilitating and receiving). Notably, the law does prescribe any minimum duration which is not subject to the definition of work; therefore, a Visitor’s Visa 11(2) is required to legally allow for short-term work for any period.

A common misconception is that foreign nationals who are citizens of visa exempt/waiver countries, such as the U.S.A., Canada, the U.K., Germany, France, Italy, Spain, Brazil, Australia and many others, and who do not normally require visas to enter South Africa for intended stays of either 90- days or 30 days (depending on their nationality and associated duration visa exemption/waiver), may conduct short-term work without a Visitor’s Visa 11(2), in terms of the Visitor’s Visa issued to them upon arrival. This is not the case, even visa exempt/waiver foreign nationals are required to apply for Visitor’s Visa 11(2)s to legally allow for short-term work in South Africa; failure to do so results in the foreign national working illegally.

Should you have any queries or require any further information, please do not hesitate to contact us by e-mail: info@blackpen.co.za or by telephone: +27 (0)21 418 2897