By Julian Pokroy
The Minister of Home Affairs on the 7th June 2023 announced that the deadline for expiry of the permits which had been shifted to the 30th June 2023, was now being extended to the 31st of December of this year.
A Ministerial Directive number 2 of 2023 has been issued in this regard.
This Directive has come at a time when the Helen Suzman Foundation is awaiting a High Court judgment, which had been reserved, and which will shortly be delivered. The likelihood is the judgment, if positive to the Foundation, would have forced the Minister to make this decision. Even if the judgment went against the foundation and other applicants, then a process of appeals would be likely to follow and that would in turn suspend the operation of the 30th of June deadline pending the outcome of all legal processes.
The likelihood also exists that if the judgment went in favour of the Foundation, the Minister would in his usual fashion, appeal the decision ad nauseam, and this in turn would also suspend the operation of the 30th of June deadline.
The ostensible reason for the extension in the first instance was to give the ZEP permit holders a further opportunity to apply if necessary and to apply for a change of the status in terms of the exemption dispensation, to a mainstream Visa such as a work Visa or spousal Visa, or any other Visa.
Another very important factor of the Directive is that the holder of a ZEP permit may not be arrested, ordered to depart the country, or detained for the purpose of deportation for any reason related to him or her not having any valid exemption certificate at this time.
The waiver which is referred to by the Minister would mean a waiver application in respect of waiving the requirement to advertise the position in the national printed media and provide proof that a South African citizen or permanent resident could not be found for the position, coupled to a waiver of the requirement to obtain a recommendation from the Department of labour before proceeding to apply for a work Visa.
The waiver petition must set out “special circumstances” as to why these requirements should in fact be waived.
Once a waiver has been obtained, if successful, then, and then only can the application for a work Visa be made and there is no watertight guarantee that such a work Visa will in fact be granted.
More on waivers
The waiver referred to is a waiver of the Advertisement requirements and the Department of Labour recommendation, which are required in terms of the Immigration Act and Regulations.
It appears that the Minister is currently indiscriminately granting waivers to people who would never qualify for a work Visa.
The problem that arises is that if the waiver is granted then the individual still has to qualify for a work Visa and those requirements are stringent and not possible for a waiter/waitress or someone in hospitality without an exceptional skill to ever qualify for a work Visa in the general work permit category.
However, if such a person is married to a South African citizen or in a permanent cohabitate spousal relationship with a South African citizen or permanent resident, then this would throw a different light on the subject.
As soon as further clarity has been obtained, we will inform you.
Julian Pokroy Immigration Attorneys
