Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 472

Cape Town

18

October

2004

No. 26901

THE PRESIDENCY No. 1206 18 October 2004 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 19 of 2004: Immigration Amendment Act, 2004.

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

GENERAL EXPLANATORY NOTE:

r

I

Words bold in type in square brackets omissions indicate existing enactments.

from

Words underlined with a solid line indicate insertions in existing enactments.

. ...

. ,- . . .~ .
3 .

(English text signed by the Presidenl.) (Assented to 12 October 2004.)

ACT
To amend the Immigration Act, 2002, so as to substitute the Preamblethe Act;to of amend, insert or delete certain definitions; to provide for the delegation of powers and review procedures; to amend the composition and functions the Immigraof tion Advisory Board; to provide afresh for interdepartmental cooperation; to amplify and redefine the Minister’s powers to make regulations and to amend the procedure in that regard; to provide for the clarificationrevision of procedures and and permits with regard to admission to, residence in and departure from the Republic; to clarify the appointment, powers and dutiesof inspectors; to further regulate theuse of conveyances with regard to admission to the Republic; to repeal the provisions that provide for Immigration Courts; to provide afresh for the of keeping of registers of lodgers by certainpersons;toclarifythepowers immigration officers and police officerswith regard to interviewing a person when they arenot satisfied that the person is entitled to in the Republic; to clarify the be position with regard to certain offences; to correct certain important technical aspects in thetext of the Act; to provide for the substitution for Schedule to the 3 Act of a new Schedule; to provide for certain transitional matters; and to provide for matters connected therewith.

B

E IT ENACTED by the Parliament of the Republic follows:-

of South Africa, as

Substitution of Preamble of Act 13 of 2002

1. The Preamble of the Immigration Act, 2002 (Act No. 13 of 2002), hereinafter referred to the principal Act, hereby substituted for the followingPreamble: as is
“PREAMBLE

5

In providing for the regulation of admission of foreigners to, their residence in, and their departurefrom the Republicand for mattersconnected therewith, the Immigration Act aims at setting in place a new system of immigration control which ensures that10 ( a ) temporary and permanent residence permits are issued as expeditiously as possible and on the basis of simplified procedures and objective, predictable and reasonable requirements and criteria, - without consuming excessive and administrative capacity;

4

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

security considerations are fully satisfied and the State retains control [on] Ethe immigration of foreigners to the Republic; interdepartmental coordination [constantly enriches] and public consultations enrich the functions of immigration control [and that a constant flow of public inputs is present in further stages of policy formulation, including 5 regulation making]; [the needs and aspirations of the age of globalization are respected and on Tradein theprovisionsandthespiritoftheGeneralAgreement Services is compliedwith] economic growth is promotedthrough the employment of needed foreign labour, foreign investment is facilitated, the 10 entry of exceptionally skilled or qualified people is enabled, skilled human resources are increased, academic exchanges within the Southern African Development Communityis facilitated and tourism is promoted; [border monitoringisstrengthenedtoensurethatthe borders of the Republic do notremainporousandillegalimmigrationthroughthem 15 may be effectively detected, reduced and deterred] role of the Republic the in the continent and the region is recognised; the entry and departure of persons all at ports of entry are efficiently facilitated, administered and managed; immigration laws are efficiently and effectively enforced, deploying to this 20 end significant administrative capacity of the Department of Home Affairs, thereby reducing the pull factors of illegal immigration; the South African economy may haveaccess at all times the full measure of to needed contributions by foreigners; the contribution of foreigners in the South African labour market does not 25 adversely impact on existing labour standardsand the rights and expectations of South African workers; a policy connection is maintained between foreigners working inSouth Africa and the training of our [nationals] citizens; push factors ofillegal immigration maybeaddressed in cooperation with 30 other Departments and the foreign states concerned; immigration control is performed within the highest applicable standards of human rights protection[,]; [and] xenophobia is prevented and countered [both within Government and civil society]; 35 ( n ) a hum& rights based culture of enforcement is promoted; (0) the international obligations of the Republic are complied with; and (p) civil society is educated on the rights of foreigners and refugees.".

Amendment of section 1 of Act 13 of 2002 2. Section 1 of the principal Act is hereby amended by( a ) the substitution for subsection (1) of the following subsection: "( 1) In this Act, unless the context [indicates] otherwise indicates40

6

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGR4TION AMENDMENT ACT, 2004

Act No. 19,2004

meaning];

‘admission’means entering the Republic at a port of entry [on the basis of the authority to do validly granted by this Act or by so an immigration officer in terms of this Act, and the verb “to admit” has a corresponding meaning] terms of section 9; in “application”meansarequestintheprescribedform which 5 complies with the requirements and provides the information and documentation which may be prescribed;] ‘Board’ meansthe Immigration Advisory Board [contemplated in] established by section 4 [of this Act]; ‘border’ means the national borders of the Republic [and includes 10 ports of entry, coastlines and the outer margin of territorial waters]; “chartered accountant” means a person referred to section 1 in of the Chartered Accountants Designation (Private)Act, 1993 (Act No. 67 of 1993) and includes an accountant, other than a 15 chartered accountant, who is recognised as such under any law and who has been specifically or generallydelegated by a chartered accountant to perform any or all activities contemplated in this Act;] ’citizen’ has the meaningassigned thereto in the South African 20 Citizenship Act, 1995 (Act No. 88 of 1995) [and “citizenship” has a corresponding meaning]; ‘conveyance’means any ship, boat, aircraft or vehicle, or any other means of transport; [(vii)] ‘corporate applicant’ means a juristic person established under the 25 laws ofthe- Republicor of -a foreigncountry which conducts business, not-for-gain, agricultural or commercial activities within the Republic and which appliesfor a corporate permitreferred to in section 21 [of this Act]: ‘[Court] - means [an Immigration Court established in 30 court’ terms of section 37 of this Act] a magistrate’s court; ‘customary union’ means a [conjugal relationship according to indigenous law and custom and which is recognised and documented as prescribed] customary union recognised in terms of the Recognition of CustomaryMarriages Act, 1998 (Act No. 120 35 of 1998); ‘Department’ means the Department of Home Affairs; ‘depart or departure’ means exiting the Republic from a port of entry in compliance with this Act [and the verb‘<todepart” has a corresponding 40 [(i)l

8

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

‘deport or deportation’ meanstheaction or procedure aimed at causing an illegalforeigner toleave the Republic [involuntarily, or under detention] in terms of this Act [and the verb “to deport” has a corresponding meaning]; ‘Director-General’ means the Director-General of the Department; 5 ‘employer’ includes [the] a person contractually boundbythe applicable employment contract as an employer or, in the case of a juristic person, its chief executive officer or the person to whom such officerhas delegated thefinal responsibility in respect of personnel matters; 10 ‘foreign country’ means a country other than the Republic; ‘foreign state’ meansthe juristic entity governing a foreign country; ‘foreigner’ means an individual who is [neither] a citizen [nor a resident, but is not anillegal foreigner]; ‘illegal foreigner’ means [an] 1 foreigner who is in the Republic in 15 contravention of this Act [and includes a prohibitedperson]; ‘immediate family’ means persons within the second step of kinship, where marriage or a spousal relationship is counted as one of such steps, but any common antecedent is not so counted; ‘immigration officer’means an officer [of theDepartment, or 20 another person having the prescribed requirements, appointed as such from timeto time by the Department and, for purposes of this Act, includes a person employed in,or contracted by, the Departmentwhohasbeenauthorised by theDepartmentto exercise certain powers and perform certain functions in the 25 name of and on behalfof the Department] appointed in terms of section 33; ’marriage’ means [alegallysanctionedconjugalrelationship intended to be permanent and concluded under the laws the of Republic, or]30 (a) a marriageconcluded in terms of the Marriage Act, 1961 (Act No. 25 of 1961); or (b) a legal marriage-under the laws of a foreign country [as prescribed from time to time, and includes a customary union]; 35 “master” means the master of a ship and refers to the person who at any given time is in charge command of a ship;] or ‘Minister’ means the Minister of Home Affairs; ‘organ of [State] s t a t e ’ [has the meaning] means an organ of state 40 - defined in section 239 of the Constitution; as ‘owner’ means the owner of record and[, in the case of a ship, it] includes the charterer of [the ship] a conveyance and any agent within the Republic of the owner or the charterer; ‘passport’ means any passport or travel document containing the 45 prescribed information and characteristics issued(a) under the South African [Passport] Passports and Travel [Document] Documents Act, 1994 (Act No. 4 of 1994); ( 6 ) on behalf of a foreign state recognised by the Government of the Republic to a person who is not a citizen; (c) on behalfof any international organisation prescribed [from 50 time time], to including regional or sub-regional [ones] organisations, to a person who is not a citizen[; and]^ [(d)] any other document approved by the [Director-General after consultation with the] Minister and issued under special circumstances to a Derson who cannot obtain a document [referred to1 55 contemplated in paragraphs (a) to (c); ‘permanent residence permit’ means a permit contemplated in section 25, 26 or 27; [(xxvii)] ‘port of entry’ means a place [prescribed fromtimetotime] designated as such by the Minister where [a foreigner] all persons 60

10

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

[has] to report before [he or she] they may [move] enter, sojourn or remain within, or [enter] depart from the Republic; [(xxviii)] ‘premises’ means any building, structure or tent, together with the land on which it is situated and the adjoining used land in connection withit,and includes anylandwithoutany building, 5 structure or tent and any [vehicle,] conveyance[, or ship]; ‘prescribed’ means [provided for] prescribed by regulation[, the verb “to prescribe” has a corresponding meaning and “prescribed from time totime’’ refers to section7(2)]; ‘prohibited person’ means any person [referred to] contemplatedin 10 section 29 [of this Act]; “publish” means publish by notice in the Government Gazette and, to the extent possible and feasible under the circumstances, convey by mail or e-mail to parties or stakeholders who have requested their inclusion or have been included in mailing lists 15 to be maintained by theDepartmentinrespect of subject matters in respect whichpublic inputis called for this Act, of by prescribed, advisableor expedient;] [(xxxii) “regulations” means general rules adoptedthe Minister after by consultation with the Board in terms this Act andpublished;] 20 of [(xxxiii)] ‘Republic’ means the Republic of South Africa [and its territory]; [(xxxiv) “resident” means the holder of a permanent residence permit referred to in section of this Act;] 25 [(XXXV) “ship” includes any vessel, boat, aircraft or other prescribed conveyance;] 25 [(xxxvi)] ‘spouse’ means a person who is 1 party to= a marriage, or a customary union[,]; or @ [to] a permanenthomosexualorheterosexual relationship [whichcallsforcohabitationandmutualfinancialand emotional support, and is proven by aprescribed affidavit 30 substantiated by a notarial contract and “spousal relationship” has a corresponding meaning] prescribed; as [(xxxvii)] ‘status’ means the status of the person as determined by the relevant permanent or temporaryresidence permit [issued] granted to a 35 person in terms of this Act [and includes rights the and obligations flowing therefrom, including any term and condition of residence imposed by the Department when issuing any such permits]; ‘temporary residence permit’ means a temporary residence permit [referred to] contemplated in section 10 [of this Act];. 40 ‘this Act’ means this Act, including its schedules, and includes the regulations made pursuant thereto; “training fund” means the public record referred to in section 2(2)(n)(i) this Act;) .. . . . of 45 ‘transit visa’ means a transit visa contemplated in section 10B; [(xli)] ‘undesirable person’ means a person [referred to] contemplated in section 30 [of this Act]; [(xlii)] ‘visa’ means [the prescribed endorsement issued upon upplication on thevalid passport of a foreigner granting such foreigner the authority proceed the to to Republic to reportfora 50 prescribed examination to an immigration officer at the port of entry a with view to admission on a specified temporary residence, which at any time before admission may be withdrawn by the Department] the authority contemplated in section 10A to proceed to a port entry; of 55 [(xliii)] ‘work’ [means business, commercial or remunerative activities within the Republic, excluding work on the basis of a permit referred to in sections 12 or 14, or work for a foreign employer pursuant to a contract which onlypartially calls for activitiesin the Republic, or work as a business or profession mainly based 60 outside the Republic but requiring activities within the Republic] includes, -,

12

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT. 2004

18 OCTOBER 2004

Act No. 19,2004

(a) conducting any activity normally associated with the running

of a specific business; or (b) being employed or conducting activities consistent with being employed or consistent with the profession of the person, with remuneration or without 5 reward, or within the Republic.”; and ( 6 ) the deletion of subsection (2). Repeal of section 2 of Act 13 of 2002
3. Section 2 of the principal Act is hereby repealed.

Substitution of section 3 of Act 13 of 2002
4. The following section is hereby substituted for section 3 of the principal Act:

10

“Delegation of powers
3. (1) The Minister may, subject to the conditions that he or she may deem necessary, delegate any power conferred on him or her by this Act, 3, 4, 5 and 7, to an officer or 15 excluding a power referred to in sections category of officersor an employee or category of employees or person or a category of persons in the Public Service, but shall not be divested of any power so delegated. (2) The Director-General may, subject to the conditions that he or she may deem necessary, delegate any power conferred on him or her by this 20 Act to an officer or category of officers or an employee or category of employees or a person or category of persons in the Public Service, but 1 shall not be divested of any power so delegated.”.

Amendment of section 4 of Act 13 of 2002
5. Section 4 of the principal Act is hereby amended25 (a) by the substitution for subsection-(2) of the following subsection: “(2) (a) The Board shall consist of(i) (aa) the Director-General; and (bb) theHeadoftheNational Immigration Branch of the Department; (ii) a representative of the following Departments, at least equivalent to the rank of Deputy Director-General: (aa) Department of Defence; (bb) Department of Education; (cc) Department of Environmental Affairs and Tourism; (dd) Department of Trade and Industry; ( e e ) Department of Foreign Affairs; ( ) Department of Justice and Constitutional Development; f (gg) Department of Labour; (hh) Department of Safety and Security; and (ii) National Treasury; (iii) a representative, at least equivalent totherankofDeputy Director-General, of the(aa) National Intelligence Coordinating Committee;and (bb) South African Revenue Service; (iv) a person representing organised business; (v) a person representing organised labour; and (vi) up to five individual persons appointedby the Minister on the basis of theirknowledge, experience involvement pertainand ing to immigration law, control, adjudication or enforcement. ( h ) TheMinister shall designatefrom the members of the Board a Chairperson and Deputy Chairperson of the Board.”; (b) by the deletion of subsection (3); ( c ) by the substitution in subsection (4) for the words preceding paragraph( a ) of the following words:

3 0

35

40

45

50

55

14

No. 26901
~~ ~~~ ~~ ~~

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

“A member of the Board referred to in subsection (2)[(k)]fa)(iv), (v) and [(Z)] (v1) shall-”; (d) by the substitution for subsection (5) of the following subsection: “ ( 5 ) The administrative work connectedwith the performance of the functions of the Board shall be performed by officers of the Department, 5 designated by the Director-General for that purpose.”; (e) by the deletion of subsection (6); and (f) by the deletion of subsection (8).

Substitution of section 5 of Act 13 of 2002

6. The following section is hereby substituted for section 5 of the principal Act:
“Functions of Board

10

5. The Board shall( a ) advise the Minister in respect of(i) the contents of regulations that may be made in terms of this 15 Act; (ii) the formulation of policy pertaining to immigration matters; and (iii) any other matter relating to this Act on which the Minister may request advice; and ( b ) serve as the interdepartmental cooperation forumfor all immigration 20 matters.”.
Repeal of section 6 of Act 13 of 2002
7. Section 6 of the principal Act is hereby repealed.

Substitution of section 7 of Act 13 of 2002

8. The following section is hereby substituted for section 7 of the principal Act:
“Regulations

25

7. (1) TheMinister may, after consultation with the Board, make regulations relating tothe powers i d duties of immigration officers; the steps to be taken to prevent the entry of illegal foreigners into the 30 Republic andto facilitate the tracing and identification of illegal foreigners in, and their removal from, the Republic; the procedure regulating the entry into and departure from the Republic of persons at a port ofentry, and the requirements and conditions to be complied with at such a port; 35 the times and places of, and the manner of conducting, an enquiry relating to, or the examination of, persons entering or desiring to enter the Republic or who, having been found in the Republic, are suspected of being prohibitedpersons or unlawfully resident therein;

t

16

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

under this Act, the ( e ) the permits and thecertificates which may be issued requirements for the issuing of permits and certificates and the conditions to which such permits or certificates may be subjected, and the circumstances under which such permits or certificates may be cancelled or withdrawn; the conditions upon which prohibited persons may be allowed to pass through the Republic while journeying orbeing conveyed to a place outside the Republic; the forms of warrants, permits, certificates or other documents to be issued orused, or ofdeclarations to be made, of registers to be kept, or for the purposes of this Act, and the particulars to be provided on or inserted in any such document, declaration or register; the fees that may be charged in respect of overtime services required to be performed by immigration officers; the fees that may be charged in respect of the application for and issuing of visas, permits and certificates and other services rendered in terms of this Act; the steps to be taken to prevent the departure from the Republic of a person not in possession of a passportor other appropriate documentation; the requirements and conditions which should be complied with by any person who, on behalf of any other person, applies for a permit referred to in sections 1 I to 22 and 25to 27, and the registration of an immigration practitioner contemplated in section 46; the manner in which payment of a deposit contemplated in section 34(3) may be enforced; the steps to be taken to ensure proper exploitation of the local labour market before a work permit is issued in terms of section 19; the circumstances whereunder and the manner which a penaltyshall in be incurred byand recovered from the owner,agent, charterer or person in control of a conveyance and who conveyed a foreigner contemplated in section 35(7) to the Republic; any matter that may be prescribed under this Act; and generally, anymatter required the better achievement of objects for the and purposes of this Act. (2) Different regulations may be made undersubsection (l)(c) in respect of different ports of entry, and the forms of warrants, permits, certificates, documents, declarations or registers prescribedunder subsection (l)(g) may differ in respect of different categories of persons. (3) A regulation made under subsection(1) may provide that any person who contravenes a provisionthereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine, or to imprisonment for a period not exceeding 12 months. (4) The Ministermay(a) exempt a person or category of persons from paying fees prescribed under subsection (1)(h);and (b) withdraw an exemption granted to a person or a category of persons under paragraph (a). (5) Any fee whichmaybeprescribedundersubsection (1) shall be prescribed by the Minister with the concurrence of the Minister of Finance.”.

5

10

15

20

25

30

35

t0

1 5

i0

18

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

Substitution of section 8 of Act 13 of 2002

9. The following section is hereby substituted for section 8 of the principal Act:
“Review and appeal procedures

8. (1) An immigration officer who refuses entry to any personor findsany person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review thal decision and( a ) if he or she arrived by means of a conveyance which is on the point o f departing and is not to call at any other port of entry in the Republic. that request shall without delay be submitted to the Minister; or (b) inanyother case than theone provided for in paragraph (a), that request shall be submitted to the Minister within three days after that decision. (2) A personwhowas refused entry or was found tobeanillegal foreigner and who has requested a review of such a decision( a ) in a case contemplatedin subsection ( l ) ( a ) ,and who has not received an answer to his or her request by the time the relevant conveyance departs, shall depart on that conveyance and shall await the outcome of the review outside the Republic; or (6) in a case contemplated subsection (l)(b), shall not be removed from in the Republic before the Minister has confirmed the relevant decision. (3) Any decision in terms of this Act,other than a decision contemplated in subsection (I), that materially and adversely affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompaniedby the reasons for that decision. (4) An applicant aggrieved by a decision contemplated subsection (3) in may, within 10 working days fromreceipt of the notification contemplated in subsection (3), makean application in the prescribed manner to the Director-General for the review or appeal of that decision. ( 5 ) The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision. (6) An applicant aggrieved by adecision of the Director-General contemplated in subsection ( 5 ) may, within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for the review or appeal of that decision. (7) The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.”.
Substitution of section 9 of Act 13 of 2002

5

10

15

20

25

3 0

55

40

10. The following section is hereby substituted for section 9 of the principal Act:
“Admission and departure
9. (1) Subject tothis Act, noperson shall enter or depart from the Republic at a place other than a port of entry. (2) Subject tothisAct, a citizen [or a resident] shall be admitted, 45 providedthat he or she identifieshimself or herself as such [inthe prescribedmanner] and[, inthecase of a resident,] the immigration officer records his or her entrance.

20

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

(3) No person shall [leave] enter or depart from the Republicunless in possession of a valid passport[, or a certificate issued by the Department upon application in lieu thereofl; unless, if he or she is a person under the age of 16 years whodoes not hold a passport, he or she is accompanied by his or her parent who 5 holds a passport in which his or her name was entered in terms of the [provisions of the] South African Passports and Travel Documents Act, 1994 (Act No. 4 of 1994), or on behalf of any government or international organisation recognised by Government the of the Republic; [and] 10 except at a port of entry, unless(i) in possession of a certificate issued by the [Department] Director-General granting permission upon application to [leave] enter or depart from the Republic at a place other than a port of entry within a certain period not exceeding six months 15 at a time. provided that forgood cause [animmigration officer] the Director-General may withdraw such permission; or (ii) exempted as an individual or falling within a category of persons exempted bythe Minister, [as he or she deems fit,] 20 on - recommendation of the Director-General, which exempthe tion may be withdrawn by the [Director-General at any time] Minister; [and] unless[, in the case a resident,] the entry or departure is recorded by o f an immigration officer[.]@ 25 (e) unless examined by an immigration officer as prescribed. (4) A foreigner who is not the holder of a permanent residence permit may only enter the Republic as contemplated in this section if( a ) [by producing to an immigration officer]his or her passport [to be] - valid for [no] not less than 30 days after the expiry of the intended 30 is stay[,l; and ( b ) [ifj issued with a valid temporary residence permit, as set out in this Act[, and may only depart as set out inthis Act].”.

Substitution of section 10 of Act 13 of 2002
11. The following section is hereby substituted for section 10 of the principal Act: 35

“Temporary residence permits
10. (1) Upon admission, a foreigner, who is not the holder of permanent a residence permit, may enter and sojourn the in Republic only if in possession of a temporary residence permit issued by theDirector-General. (2) Subject to this Act, upon application [and upon prescribed 40 examination at the port of entry] in the prescribed manner and on the prescribed form, one of the temporary [residences] residence permits [set out] contemplated in sections 11 to 23 may be issued to a foreigner.

22

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

( 3 ) If issued outside the Republic,a temporary residencepermit is deemed to be of force and effect only after an admission. (4) A temporary residence permit is to be issued on condition that the holder is not or does not become a prohibited or an undesirable person. (5) The Director-General may [For] for good cause [,as prescribed, the Department may] attach reasonable individual termsand conditions may be prescribed to a temporary residence permit. (6) Subject to this Act, a foreigner may apply to the Director-General in the prescribed manner on the prescribed formto change his or herstatus and or the conditions attached his or her temporaryresidence permit, or both to such status and conditions, as the case may be, while in the Republic. (7) Subject to this Act, the Director-General may, on application in the prescribed mannerand on the prescribedform, extendthe period for which a permit contemplated in subsection (2) was issued. (8) An application for a change in status does not provide a status and does not entitle the applicant to any benefit under the Act, except for those explicitly set out in the Act, or to soiourn in the Republic pending the decision in respect of that application. (9) The Director-Generalmay at any time in writing notify the holder of a temporary residencepermit issued in terms of this section that, subject to subsection (lo), the permit shall be cancelled for the reasons disclosed in the notice and that the holder is thereby ordered to leave the Republic within a period stated in that notice, and upon the expiration of that period the permit shall become null and void. (10) The holder of a temporary residence permit who receives a notice contemplated in subsection (9) may, before the expiration of the period stated in that notice, make representations to the Director-General which he or she shall consider before malung his or her decision.”.
Insertion of sections 10A and 10B in Act 13 of 2002

5

10

15

20

25

12. The following sections are hereby inserted in the principal Act after section 10: 30 “Visas 10A. (1) Any foreigner who enters the Republic shall, subject to subsections (2) and (4), on demand produce a valid visa, granted under 1 subsection ( 3 ) , to an immigration officer. (2) Any person who holdsa valid permit issued in terms sections 13 to 35 of 22 and 25 to 27 shall, upon his or her entry into the Republic and after having been issued with that permit, be deemed to be in possession of a valid visa for the purposes of this section. (3) A visa referred to in subsection (1)may, subject toany condition thatthe Minister may deem fit,be 40 granted by the Minister to person any who is not exempt, as contemplated in subsection (4), from the requirement of having to be in possession of a valid visa, and who has applied for such avisa in the prescribed manner and on the prescribed form; shall contain a statement to the effect that authority to proceed to the 45 Republic to report to an immigration officer at a port of entry hasbeen granted by the Minister to the holder of a passport, and such statement shall be endorsed in the passport concerned;and may for good cause be withdrawn and declared null and void by the Minister. 50

26

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004
IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

Amendment of section 11 of Act 13 of 2002 13. Section 11 of the principal Act is hereby amended(a) by the substitution for subsection (1) of the following subsection: “(1) A visitor’s permit may be issued for any purpose other than those provided for in sections 13 to 24, and subject to subsection (2), by the 5 [Department] Director-General in respect of a foreigner who(a) [holds a visa; or] complies with section 10A; and (b) [is a citizen of a foreignstateprescribedfromtime to timeand] provides the financial or other guarantees prescribed [from time to time] or in his respect of her departure[,$ 10 [provided] Provided that such permit(i) [cannot] maynot exceed threemonthsandupon application maybe renewedbythe [Department,] Director-General for a further period which shall not exceed three months; or (ii) maybeissued by the [Department] Director-General upon application 15 for any period which may not exceed three years to a foreigner who [to] has satisfied the [Department] Director-General that he or she controls sufficient available financial resources, which may be prescribed [from time to time], and is engaged in the Republic in(aa) % academic [sabbaticals]sabbatical; 20 (bb) voluntary or charitable activities; (cc) research; or (dd) 9 other prescribed [activities and cases] activity.”; ( b ) by the substitution for subsection ( 2 ) of the following subsection: “(2) Theholder of a visitor’s permit not may conduct work, unless 25 authorised by the Director-Generalin the prescribed manner and sub-ject the to prescribed requirements andconditions.”; ( c ) by the deletion of subsections (3) and (4); (d) by the substitution for subsection (5) of the following subsection: “ ( 5 )Special financial and other guarantees may be prescribed in respect of 30 the issuance of a visitor’s permit to certain prescribed classes of foreigners [prescribed from time to time].”;and ( e ) by the addition of the following subsection: “(6) Notwithstanding the provisions of this section, a visitor’s permit may be issued to a foreigner who is the spouse of a citizen or permanent resident 35 and who doesnot qualify for any of the permits contemplatedin sections 13 to 22: Provided that(a) such permit shall only be valid while the good faith spousal relationship exists; (b) on application, the holder of such permit may be authorised to perform 40 any of the activities provided for in the permits contemplatedin sections 13 to 22; and ( c ) the holder of such permit shall apply for permanent residence contemplated in section 26(b) within three months fromthe date upon which he she or qualifies to be issuedthat with permit.”. 45 Repeal of section 12 of Act 13 of 2002 14. Section 12 of the principal Act is hereby repealed.

28

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

Amendment of section 13 of Act 13 of2002 15. Section 13 of the principal Act is hereby amended( a ) by the substitution in subsection (1) for paragraph ( a ) of the following paragraph: “(a)the [Department] Director-General, as prescribed[,];or[, at the option 5 of the applicant,]”;and ( b ) by the substitution for subsection (2) of the following subsection: “(2) The Director-General shall, [When] when so requested by[,] and after consultation with[,] the Department of Education, [the Department shall] determine an ad hoc fee for the issuance ofstudy permits in respect of 10 institutions which are publicly funded or subsidised.”. Amendment of section 14 of Act 13 of 2002
16. Section 14oftheprincipalAct is hereby amended by the substitution for subsection (2) of the following subsection: “(2) [The] A_ treaty be may permit issued by15 ( a ) the [Department] Director-General, as prescribed; or ( b ) the Department of Foreign Affairs or [the other]another organ of [State] E responsible for the implementation of the treaty concerned under a delegation from the [Department] Director-General, provided that(i) information relating to the failure ofsuch foreigner to comply with the 20 terms and conditions ofthe permit and to depart when required is conveyed to the [Department] Director-General; (ii) the organ of [State] state concerned satisfies the [Department] DirectorGeneral that, under the circumstances, it has the capacity to perform this 25 function; and (iii)the permit is issued in accordance withtheprescribed requirements, procedures and forms [fortheissuance of suchpermitareprescribed].”.

Substitution of section 15 Act 13 of 2002 of
17. The following section is hereby substituted for section 15 of the principal Act:

30

“Business permit

15. (1) A business permit may be issued by the [Department] Director-General to a foreigner intending to establish[,] or invest in, or who has established or invested in a business in the Republic in which he or she may be employed, and an appropriate permit for the duration of the 35 business permittothemembersof such foreigner’s immediate family: [provided] Provided that( a ) such foreigner invests the prescribed financial or capital contribution in such business; ( b ) the contribution referred to in paragraph ( a ) [be] forms part of the 40 intended book value of such business; and [(c) a chartered accountant certifies compliance with the provisions of this Act,] [(d)](c) such foreigner has undertaken to complywith any relevant registration requirement set out in any law administered by the South 45 African Revenue Service. (2) The holder of a business permit may not conduct work other than work related to the business in respect of which the permit has been issued. (3) The [Department] Director-General may reduce or waive the [capitalization] capitalisation requirements referred to in subsection (l)(a) 50 for businesses which are prescribed [fromtime to time] to bein the national interest, or when so requested by the Department of Trade and Industry. (4) The holder of a business permit shall [causethecertification referredtoinsubsection (l)(c) to be renewed] submit proof to the 55 satisfaction of the Director-General that he or she has fulfilled the

30

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

requirements contemplated in subsection (l)(a) within 24 months of the issuance of the permit, and within every two years thereafter. ( 5 ) A business permit may be issued to a foreigner for more than one entry [to a person] if multiple entries into the Republic by that [person] foreigner over a periodof time are necessary for that [person] foreigner to conduct the business in question effectively.”.

5

Amendment of section 16 of Act 13 of 2002 18. Section 16 of the principal Act is hereby amendedby the substitution for subsection (1) of the following subsection: “( 1) The Director-Generalmay, as prescribed, issue a crew permit to a foreigner 10 who is a member of the crew of a conveyance.”. Amendment of section 17 of Act 13 of 2002 19. Section 17of the principal Actis hereby amendedby the substitution for subsection ( 2 ) of the following subsection: “ ( 2 ) When so requested by[,] and after consultation with[,] the Department of 15 Health, the [Department] Director-General shall determine an ad hoc fee for the issuance of medical treatmentpermits in respect of institutions which are publicly funded or subsidised.”. Amendment of section 18 of Act 13 of 2002 20. Section 18 of the principal Actis hereby amended by the substitution for 20 subsection (1) of the following subsection: “(1) A relative’s permit may be issued for the prescribed period by the [Department] Director-General to a foreigner who is a member of the immediate family of a citizen or a permanent resident, provided that such citizen or permanent resident provides the prescribedassurance[, financial 25 (a) certified by a chartered accountant, or, at the applicant’s option, (b) tobe corroborated by relevantdocumentationto be evaluated by the Department that he or shehasthemeansavailabletosupport such foreigner for the requested duration of such permit, either personally or contribution the through of suchforeigner].”. 30 Substitution of section 19 of Act 13 of 2002 21. The following section is hereby substituted for section 19 of the principal Act: “Work permit

19. (I) Aquota workpermitmay be issued the by [Department] Director-General, as prescribed, to a foreigner if the foreigner falls within a 35 specific professional category or within a specific occupational class determined by the Minister at least annually by notice in the Gazette after consultation with the Ministers of Labour and Trade and Industry, and as long as the number of work permits so issued for such category or class 40 does not exceed the quota determined notice. thein

32

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

such

by

( 2 ) A general permit work may be issued by the [Department] Director-General to a foreigner not falling within a category or class contemplated in subsection (1) if the prospective employersatisfies the [Department] Director-General in the manner prescribed that despite diligent search heorshe hasbeenunableto employa 5 person in the Republic with qualifications or skills and experience equivalent to those of the applicant; produces certification from a chartered accountant that the terms and conditions under which he or sheintendstoemploysuch foreigner, including salary and benefits, are not inferior to those 10 prevailingthe in relevant market segment for citizens and residents, takingintoaccountapplicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any, provided that(i) a copy of such certification shall be conveyed to aprescribed 15 office of the Department of Labour; and (ii) such certification shall lapse if objected to for good cause by such office of theDepartment of Labour within 15 calendar days of its receipt;] (b) satisfies the Director-General in the prescribed manner that the terms 20 and conditions under which heor sheintends to employ that foreigner, including salary and benefits,are not inferior to those prevailing in the relevant market segment for citizens, takmg into account applicable collective bargaining agreements and other applicable standards; and (c) has [committed] agreed in writing to the notify [Department] 25 Director-General when such foreigner is no longer employed or is employed in a different capacity or rolel[; and (d) has submitted a certification from a chartered accountant of the job description and that the position exists and is intended to be filled foreigner.] 30 (3) A general work permit contemplated in subsection (2) shall lapse if, withinsixmonths of its issuance, and within every yearthereafter,its holder fails to submit satisfactory proof to the [Department] DirectorGeneral [certification from his or her employer’s chartered accountant] that he orshe is still employed and of the terms and conditions of his or her 35 employment, including the job description: Provided that a general work permit shall remain valid for a period not longer than six months in respect of a holder whoseemployment contract hasbeenterminateduntilthat holder has exhausted all applicable rights of recourse: Provided further that the period may beextended for further periods of three months at a time on 40 submission of proof to the satisfaction of the Director-General that, due to circumstances beyond the control of the holder, the recourse procedures have not been finalised. (4) Subject to any prescribed requirements, an exceptional skills work permit be may issued by the [Department] Director-General to an 45 individual [of] possessing exceptional skills or qualifications and to those members of his or her immediate family determined by the [Department] Director-General under the circumstances or [by regulation] as may be prescribed. (5) An intra-company transfer permit be work may issued the by 50 [Department] Director-General to a foreigner who is employed abroad by a business operating in the Republic in a branch, subsidiary or affiliate relationship and who by reason of his or her employment is required to conduct workin the Republic for aperiod not exceeding twoyears, provided that55

34

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT

18 OCTOBER 2004

Act No. 19,2004

ACT, 2004

[(a) a chartered accountant acting on behalf of the employer of such foreigner certifies the that employer needs employ to such foreigner within the Republic and such foreigner’s job description;] [@)I@ the employer undertakes that it will take [adequate or] prescribed 5 measures to ensure that such foreigner will at all times comply with the provisions of this Act, and will immediately notify the [Department] Director-Generalif it has reason to believe otherwise; and [(c)]W the employer furnishes the prescribedfinancial guarantees to defray deportation and other costs should such foreigner fail to depart 10 when no longer allowed to sojourn in the Republic. (6) The holder of an intra-company transfer work permit may conduct work only for the employer referred to in subsection ( 5 ) and in accordance with Qob the descriptionandotherelementscontemplatedinthe certification referred to in subsection (5)or] requirements set out in his 15 or her permit.”. Substitution of section 21 of Act 13 of 2002

22. The following section is hereby substituted for section 21 of the principal Act:
“Corporate permit

21. (1) A corporate permit may issued be by the [Department] 20 Director-General to a corporate applicant to employ foreigners who may conduct work for such corporate applicant. ( 2 )After consultation with the Departments of Labour and Trade and [ofl Industry, the [Department] Director-Generalshall determine the maximum number of foreigners to be employed in terms of a corporate permitby a 25 corporate applicant, after having considered[(a) the certification prepared a chartered accountant on the basis by of the relevant prescription or information of the Department of Labour, if any, that at anygiven time the relevant foreigners are employed on terms and conditions not inferior to those offered30 to citizens and residents or prevailing in the relevant market segment, taking into account collective bargaining agreements and other standards, if any;] [@)I@ the undertaking by the corporate applicant that it will(i) take [adequate or] prescribed measures to ensure that any 35 foreigner employed terms of the corporate permit will at [any in time] all times comply with the provisions of this Act and the corporate permit; and (ii) immediately notify the [Department] Director-General if it has reason to believe that such foreigner is no longer in compliance 40 with subparagraph [(i)] [above]; [(c)]@ the financial guarantees posted in the prescribed amount and form by the corporate applicant to defray deportation and other costs should the corporate permit be withdrawn, or certain foreigners fail to leave the Republic when no longer subject to the corporate permit;and 45 [(d)]@) corroborated representations made by the corporate applicant in respect of the need to employ foreigners, their job descriptions, the number of citizens or permanent residents employed and their positions, and other prescribed matters. ( 3 ) The[Department]Director-General maywithdraw or [modify] 50 amend [the] corporate permit for good and reasonable cause. (4) The Ministermay, [In] after consultation with the Minister of Trade and Industryor Minerals and Energy or Agriculture, as the case may be, the Minister of Labour, [may] designate certain industries, or segments thereof, in respect of which the Government may55 (a) reduce or waive the requirements of subsection (2)[(d)]M; [or] (b) enter into agreements with one or more foreign states and set as a condition of a corporate permitthat its holder-

36

No. 26901

GOVERNMENT GAZE’ITE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

employs foreigners partially, mainly or wholly from such foreign countries; and (ii) remits a portion of the salaries of such foreigners to such foreign countries; (c) apply this subsection in respect of foreigners required for seasonal or 5 temporary peak period employment; or (d) waive or reduce the requirement of subsection (2)[(c)]m under special conditions. ( 5 ) The holder of a corporate permit also employ foreigners in terms may of section 19.”. 10 (i)

Amendment of section 22 of Act 13 of 2002

23. Section 22 of the principal Act is hereby amended( a ) by the substitution for paragraph (a) of the following paragraph: “ ( a ) participating in a programme of cultural, economic or social exchange, organised or administeredby an organ of [State] state or a [public higher 15 education] learning institution, in conjunction with a learning institution - an organof a foreign state, provided thator (i) [after consultation with the Board, theMinistermaydelegate the authority to issue such permits such organ of [State] state to] or learning institution [if such organ of Statehassatisfiedthe 20 Minister that it can ensure the compliance foreigner with of such reports to the [Department] Director-General this Act and report] on the stages and the completion of the relevant programme together with other prescribed information; and (ii) it maybe prescribed that, in respect of certain programmes, upon 25 expiration of such permitsuch foreigner may notqualify for a status until he or she has complied with the requirement of a prescribed period of physical presence in his or her foreign country or of domicile outside the Republic; or”; and ( b ) by the substitution inparagraph (b) for subparagraph (iii) of the following 30 subparagraph: ‘‘(iii) such foreigner maynot qualify for a [temporaryor] permanent residence permit [until he or she has spent two years outside the Republic] within two yearsafter the expiry of the exchange permit, which requirement may be waived by the [Department] Director- 35 General in extraordinary circumstances.”.

38

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

Substitution of section 23 of Act 13 of 2002 24. The following section is hereby substituted for section 23 of the principal Act: “Asylum transit permit 23. (J [Department] Director-General may issue an asylum transit I The permit to a person who at a port of entry claims to be an asylum seeker 5 [subject to the Refugees Act, 1998 (Act No. 130 of 199S)], which permit shall be valid for a period of 14 days only [on any prescribed terms and conditions]. (2) Despiteanythingcontained inany other law, when the permit contemplated in subsection (1) expires before the holder reports in person 10 to a Refugee Reception Officer at a Refugee Reception Office in order to apply for asylum in terms section 2 1 of the Refugeesxct, 1 9 x ( A c t . of 130 of 1998), the holder of that permit shall become an illegal foreigner and be dealt with in accordance with this Act.”. Substitution of section 24 of 2002 of Act 13 25. The following section is hereby substituted for section 24 of the principal Act: “Cross-border and transit [passes] permits 24. (1) The [Department] Director-General mayissue a cross-border [pass with the same effect as a multiple admission visitor’s]permit to a citizen or a permanentresident or a foreigner who is a citizen or a resident 20 of a prescribed foreign country with which the Republic shares a border [and who does not hold apassport has received aprescribed but identity document by the Department and is registered withthe Department]. (2) The [Department] Director-General may issue a transit [visa] permit authorking= 25 ( ) a foreigner travelling to a foreign country to make use of the transit g facilities at a port of entry[.];r (b) a foreigner to travel from a port of entry through the Republic to a foreign country.”. section Amendment of Act of 2002 of 25 13

15

30

26. Section 25 of the principal Act is herebyamended bythe substitution for subsection (3) of the following subsection: “(3) A permanent residence permit [is to] shall be issued on condition that the holder is not a prohibited or undesirable person, subject to section 28 [of this an and Act].”. 35

40

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

Substitution of section 26 of Act 13 of 2002 27. The following section is hereby substituted for section 26 of the principal Act: “Direct residence 26. Subject to section 25, the [Department shall] Director-General may issue a permanent residence permit to a foreigner w h o 5 ( a ) has been the holder of a work permit, including one issued under a corporate permit, in terms of this Act for five years and has provento the satisfaction of the Director-General that he or she has received an offer for permanent employment[, provided that(i) such foreigner submittedcertification a from or his her 10 prospective permanent employer’s chartered accountant of thejobdescriptionandthattheposition exists and is intended to be filled by suchforeigner; and (ii) the Department of Labour certifies the that terms and conditions of such offer, including salary and benefits, are 15 notinferiortothoseprevailingintherelevantmarket segmentfor citizens and residents, takingintoaccount applicable collective bargaining agreements and other standards]; ( b ) [is] has been the spouse of a citizen or permanent resident for five 20 years[, provided that] and the Director-General issatisfied that a good faith spousal relationship exists: Provided that such permit shall lapse if at any time within years fromthe issuing of that permitthe two good faith spousal relationship no longer subsists, save for the case of death 25 [(i) the Department is satisfied that a good faith spousal relationship exists; and (ii) such permit is issued on condition that it shall lapse at any if time within three years from its application the good faith spousal relationship no longer subsists, save for the caseof 30 death]; ( c ) is a child under the age of 2 1 of a citizen or permanentresident [under the age of 211, provided that such permit shall lapse if such foreigner does not submit an application for its confirmation within twoyears of his or her having turned 21 years of age; or 35 (d) is a child of a citizen.”. Substitution of section 27 of Act 13 of 2002 28. The following section is hereby substituted for section 27 of the principal Act: “Residence on other grounds 27. The [Department] Director-General may issue apermanent resi- 40 dence permit to a foreigner of good and sound character w h o ( a ) has received an offer for permanent employment, provided that-

42

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004
IMMIGRATION AMENDMENT ACT. 2004

Act No. 19,2004

such foreigner [submitted a certificationfrom a chartered accountant actingon behalf of suchforeigner’s prospective permanent employer] has proven to the satisfaction of the Director-General that the position exists and that the position and related job description was advertised in the prescribed 5 form and no suitably qualified citizen or permanent resident was available to fill it; [(ii) the Department Labour of certifies the that terms and conditions of such offer, including salary and benefits, are notinferiortothoseprevailing in therelevantmarket 10 segment citizens residents, for or taking into account applicable collective bargaining agreements and other standards, if any;] [(iii)]U the application falls within the yearly limits of available permitsprescribed [fromtime to time] for each sector of 15 industry, trade andcommerce, after consultation with the Departments of Trade and Industry, Labour and Education; and [(iv)](nl) the permit may be extended to such foreigner’s spouse and children younger than 21 years of age; 20 taking into account any prescribed requirement, has demonstrated to the satisfaction of the [Department] Director-General that he or she possesses extraordinaryskills or qualifications, and to those members of such foreigner’s immediate family determined the [Department] by Director-General under the circumstances or [by regulation] as may 25 be prescribed; intends to establish or has established a business in the Republic investing in it or in an established business the prescribed financial contribution to be part of the intended book value [as certified by a chartered accountant], and to the members of such foreigner’s 30 immediate family, provided that(i) the [Department] Director-General maywaive or reduce such capitalisation requirements for businessesprescribed [from time to time]to be in the national interest or when so requested by the Department of Trade and Industry; and 35 (ii) the permit shall lapse if the holder fails to [renew such certification] prove within two years of the issuance of the permit[,] and three years thereafter, to the satisfaction of the Director-General, that the prescribed financial contribution to be of part the intended book value is still invested as 40 contemplated in this paragraph; is a refugeereferred toin section 27(c) of the Refugees Act, 1998 (Act No. 130 of 1998), subject to any prescribed requirement; intends to retire in the Republic, provided that [a chartered accountant acting on behalf of such foreigner certifies that] such 45 foreigner proves to the satisfaction of the Director-General that he or she(i) has the right to a pension oran irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment for the rest of his or her life; or 50 (ii) has a minimum prescribed net worth; (i)

44

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

r )has [provided a certification by a chartered accountant] proven to f
the satisfaction of the Director-General that he or has a prescribed she minimum worth has net and paid a prescribed amount to the [Department] Director-General; or ( g ) is the relative of a citizen or Emanent resident within the first step of kinship.”.

5

Amendment of section 28 of Act 13 of 2002 29. Section 28 of the principal Act is hereby amended( a ) by the substitution for the heading to the section of the following heading: permanent residence “Withdrawal of permit”; 10 ( 6 ) by the substitution for paragraph (a) of the following paragraph: “ ( a ) [withinfouryears of theissuance of suchpermit, has been] convicted of any of theoffences listed in [Schedule] Schedules 1 and 2;”; (c) by the substitution for paragraph (b)of the following paragraph: 15 “(b)has failed to comply with terms andconditions of his or her permit;”: the and (d) by the substitution in paragraph (c) for subparagraph (iii) ofthe following subparagraph: “(iii) the Minister[, on recommendation of the Director-General,] may 20 grant an exemption from the requirement of residence in respect of certain residents or class of residents;”. Substitution of section29 of Act 13 of 2002
30. The following section is hereby substituted for section 29 of the principal Act:

“Prohibited persons 29. (1) Thefollowing foreigners are prohibitedpersons and donot qualify for a visa, admission into the Republic, atemporary or a permanent residence permit: ( a ) [those] Those infected with or carrying infectious, communicable or other diseases or viruses as prescribed [from time to time]: ( b ) anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country [with which the Republic has regular diplomatic relations] in respect of genocide, terrorism, murder, torture, [drugtrafficking] drug-related charges, money laundering or kidnapping; ( c ) anyone previouslydeported and not rehabilitated by the [Department] Director-General in the prescribed manner; ( d ) a member of or adherent to an association or organisation advocating the practice of racial hatred or social violence; [and] (e) anyone who is or has been a member of or adherentto an organisation or association utilising crime or terrorism to pursue its ends[.]& If) anyone found in possession of a fraudulent residence permit, passport or identification document. ( 2 ) [After consultation with the] The Director-General may, for good cause [the Minister may],declare a person referred to in subsection (1) not to be a prohibited person.”.

25

30

35

40

45

GOVERNMENT 26901 No. GAZETTE,

46
Act No. 19,2004

18 OCTOBER 2004

IMMIGRATION AMENDMENT ACT, 2004

Substitution of section 30 of Act 13 of 2002 31. The following section is hereby substituted for section 30 of the principal Act: “Undesirable persons 30. (1) The following foreigners may be declared undesirable by the [Department] Director-General, as prescribed, and after such declaration, 5 do not qualify for a visa, admission into the Republic, a temporary or a permanent residencepermit: (a) [anyone] Anyone who is or is likely to become a public charge; (b) anyone identified as such by the Minister [after consultationwith the Board, or in the case of urgency, bythe Minister who, in such cases, 10 shall inform the Boardas soon as practicable]; (c) anyone who has been judicially declared incompetent; (d) an unrehabilitated insolvent; (e) anyone who has been ordered to depart in terms of this Act; anyone who is a fugitive from justice; and 15 (g) anyone with previous criminal convictions without option of a fine the for conduct whichwouldbe an offence in the Republic, with the exclusion of certain prescribed offences. ( 2 ) Upon application [from] b~ the affected person, the [Department] Minister may, for good cause, waive any of the grounds of undesirability 20 [provided that it reports such decisions to the Minister and the Board, with reasons].”.

u)

Amendment of section 31 of Act 13 of 2002
32. Section 31 of the principal Act is hereby amended(a) by the substitution in subsection (1) for paragraph (b) of the following 25 paragraph: “(b)the officers and crew of [an official] a public [ship] conveyance of a foreign state, while such [ship] conveyance is in & port of entry.”; (b) by the substitution for subsection ( 2 ) of the following subsection: “ ( 2 ) Upon application, the Minister[, as he or deems she fit, after 30 consultation with the Board,] may under terms and conditions determined by him or her(a) allow adistinguished visitor and certain members of his or her immediate family and members in his her employ or of his or her household to be or admitted to and sojourn in the Republic [for a period not exceeding six 35 months1,provided that such foreigners do not intend to reside in the Republic permanently; (b) grant a foreigner or a category of foreigners the rightsof permanent residence for a specified or unspecified period when special circumstances exist which would justify such a decision[;]; [provided] 40 Provided that the Minister may(i) exclude oneor more identified foreigners from such categories; and (ii) for good cause, withdraw such rights from a foreigner or a category of foreigners;

48

No. 26901

GOVERNMENT GAZETTE, I8 OCTOBER 2004
~

~-

Act No. 19,2004

IMMIGRATION AMENDMENT ACT, 2004

[(c) authorise any person or category persons to enter the of Republic a t

a place other than aport entry, in which case the Department of shall issue to such person(s)the prescribed written permission orpassport endorsement, provided that such authorisation be withdrawn a t may any time by the Minister; and] 5 [(d)]pJ for goodcause, waive any prescribed requirement or form[, provided that if such consultation requirementwould unduly delayan urgent action, the Minister may inform the Board after the fact of any action taken under this subsection and the reasons for theurgency.]@ of (d) for good cause,withdraw an exemption granted by him or her in terms of 10 this section.”; and (c) by the addition of the following subsection: “(3) The provisions of sections 10 and 25 shall not apply to a foreignerwho prior to 1 February 1937 lawfully entered the Republic for the I purpose of permanent residence therein; 15 who by virtue of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), enjoys any immunities and privileges in the Republic; or to whom a written authority or permission to enter the Republic has been issued in terms of section 1 or 3 of the Immigration QuotaAct, 1930 (Act 20 No. 8 of 1930), and who entered the Republic within the period stated in that authority or permit or within that period as lawfully extended.”.
Y

Amendment of section 32 of Act 13 of 2002

33. Section 32 of theprincipalActisherebyamendedby the substitution for 25 subsection (1) of the following subsection: “( 1) Any illegal foreigner shall depart, unless authorised by the [Department] Director-General in the prescribed manner remain in theRepublic pending his or to her application for a status.”.
Amendment of section 33 of Act 13 of 2002

3b 34. Section 33 of the principal Act is hereby amendedby the substitution for subsection (1) of the following subsection: “( 1) Aninspectorate [shall be]is hereby established [through regulations] and shall consist of [such] the persons, including immigration officers, [as may be] determined by the Minister.”; by the substitution for subsection (2) of the following subsection: 35 “(2) (a) [On the recommendation of the Director-General, the] The Ministershall appoint the head of the inspectorate. (b) The Director-General shall appoint immigration officersand other persons required to exercise the functions of the inspectorate. (c) The Minister may prescribe40 (i) the procedure to be followed in the appointment of immigration officers or categories of immigration officers; (ii) the requirements for the appointment contemplated in subparagraph (i); and (iii) the allocation of functions to immigration officers or categories of 45 immigration officers.”; and

50

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

(c) by the substitution for subsection (4) of the following subsection: “(4) An immigration officer may, forthe purposes of this Actat anytime before commencement or inthe course of an investigation the conduct an inspection in loco in accordance with subsections (5) and (9); by notice in writing call upon any person whois in possession of or has 5 the custody of or control over any thing which in the opinion of the [Department] Director-General is relevant to the investigation to produce such thing, and the [Department] Director-Generalmay inspect and retain any thing so produced for a reasonabletime; and by notice in writing call upon person any to appear before the 10 [Department]Director-General and to giveevidence or to answer questions relevant to the subject matter of the investigation[,]: [provided] Providedthat any of such notices shall specify the timewhen and the place wherethe person to whom it is directed shall appear, besigned by an immigration officer, be served by an immigration officer or [by] a sheriff by 15 delivering a copy thereof to the person concerned or by leaving it at such person’s last known place of residence or business, and shall specify the reason why the [article] thlng is to be produced or the evidence is to be given.”.
Amendment of section 34 of Act 13 of 2002

20

35. Section 34 of the principal Act is hereby amendedby the substitution in subsection (1) for the words preceding paragraph(a) of the following words: “Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or herto be arrested, and shall, irrespective of whether 25 such foreigner is arrested, deport him orher or cause or herto be deported him and may,pending his or her deportation, detain him or heror cause him or her tobe detained in amanner andat [the] 2 place [under the control o r administration of the Department] determined by the Director-General, provided that the foreigner concerned-”; 30 by the substitution in subsection (5) for the words preceding paragraph(a) of the following words: “Any person other than a citizen or a permanent resident whohaving been-”; and by the addition of the following subsection: 35 “( 1I ) A person detained on ship may not be held in detention for longer than 30 days withoutan order of court.”.

a

Substitution of section 35 of Act 13 of 2002

36. The following section is hereby substituted for section 35 of the principal Act:
“[Ships] Duties with regard to conveyances 40

35. (1) Save for extraordinary circumstances necessitating otherwise, no [master] personin charge of a conveyance shall cause [hisor her ship] that conveyance to enter the Republic [by landing or shoring] at any place other than a port of entry.

52

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

stating-

(2) An immigration officer or other authorised person employed by the [Department] Director-Generalmay(a) board any [ship] conveyance which is entering or has entered into any port of entry and for good cause prohibit or regulate disembarkation from, or the offloadingof, such [ship] conveyance in order to ascertain the status or citizenship of its passengers; and (b) request the person in control of a port of entry or any person acting under his or her authority to order the [master] person in charge of a conveyance to park, moor oranchor [his or her ship] conveyance that in such port of entry at such distance from the shore or landing place or in such position as he or she may direct. (3) The [master of a ship] person in charge of a conveyanceentering g prior to entering a port of entry shall upon demand [shall] deliver to an immigration officer(a) a list (i) thenames of all passengerson board the [ship] conveyance, classified according to their respective destinations; and (ii) suchother details asmaybe prescribed [fromtimetotime]; ( b ) a list of stowaways, if any have been found; (c) a list of thecrewandallother persons,other thanpassengers and stowaways, employed, carried or present on the [ship] conveyance; and (d) a return, under the handthe of medical officerthat of [ship] conveyance or, if there is no such medical officer, under the handof the [master] person in charge of a conveyance himself or herself, stating(i) any cases of disease, whether infectious or otherwise, which haveoccurred or are suspected tohave occurred upon the voyage; (ii) the namesofthepersons whohave suffered or aresuffering from such disease; (iii) details of any birth or death which occurred upon the voyage between such port of entry and a previous port; and (iv) anyother prescribed matterorevent[,]: [provided] Provided such that immigration officer may(aa) exempt from the requirements of this subsection the master of a ship destined for any other port in the Republic, subject to compliance with the duty to deliver suchlists or return atsuchportandwith any directive such immigration officer may issue to the master; and (bb) if satisfied that a name should be addedto or deleted from any of such lists, authorise such addition or deletion. (4) If a [ship] conveyance arrives at a port of entry with a passenger on board bound for a destination outside the Republic who is not on board when the [ship] conveyance leaves such port of entry and has not been admitted, the [master] person in charge or the owner of that [ship] conveyance shall forfeit a sum fixed by the immigration officer within a prescribed limit.

5

10

15

20

25

30

35

40

45

54

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

( 5 ) An immigration officer may require the [master of a ship] person in charge of a conveyance muster the crew of such [ship] conveyance onthe to arrival of such [ship] conveyance in any port of entry and again before it leaves such port of entry. (6) The competentofficer of customs at any [harbour] port of entry may 5 refuse to give to the [master of any ship] person in charge of a conveyance clearance papers to leave that [harbour] port of entry, unless heor she has complied with [the provisionsofJ this Act and produced a certificate of an immigration officer to that effect. (7) A [master] person in charge of a conveyance shall ensure that any 10 foreigner conveyed to a port of entry= &! for purposes of travelling to a foreign countryl holds a valid passport and transit visa, if required[.]@ (b) holds a valid passport and visa, if required. (8) A personin charge of a conveyance shall be responsible for the 15 detention and removal of a person conveyed if such person is refused admission in the prescribed manner, as well as for any costs related to such detention and removal incurred by the Department.”.

Repeal of section 36of Act 13 of 2002 37. Section 36 of the principal Act is hereby repealed. Repeal of section 37 of Act 13 of 2002 38. Section 37 of the principal Act is hereby repealed. Substitution of section 40 of Act 13 of 2002 39. The following section is hereby substituted for section 40 of the principal Act: “Keeping of registers of lodgers by certain persons
25 20

40. (1) The personin charge ofany premises, whether furnished or unfurnished, where lodging or sleeping accommodation isprovided for payment or reward shall, if those premises fall within a prescribedclass, in the prescribed manner keep aregister of all persons who are provided with lodging or sleeping accommodation thereon, and every such person shall 30 sign the register and furnish therein the prescribed particulars regarding himself or herself. (2) Every person in charge of premises referred to in subsection (1) shall, when required to do so by an immigration officer or police officer, produce 35 the register referred to in that subsection for inspection. (3) Any person w h o ( a ) contravenes or fails to comply with a provision of subsection (1) or (2); (b) gives false or incorrect particulars for the purposes of subsection (1); 40 or (c) hinders any officer referred to in subsection (2) in the performance of his or her functions, shallbeguilty of anoffenceand liable onconviction to a fine or to imprisonment for a period not exceeding 12 months.”.

56

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

Substitution of section 41 of Act 13 of 2002 40. The following section is hereby substituted for section 41 of the principal Act: “Identification 41. ( ) When so requested by an immigration officer or a police officer? 1 any person shall identify himself or herself as citizen, permanent resident 5 a or foreigner [when so requested by an immigration officer or a police such immigration officer [a] police or officer], and if onreasonable grounds officer is not satisfied that such person entitled to be inthe Republic, is person may be interviewed by an immigration officer or a police officer about hisor heridentity or status, and such immigration officer [a] police 10 or officer may take such person intocustody without a warrant, and shall take reasonable steps, as may be prescribed, to assist the person inverifying his or her identity or status, and thereafter, if necessarydetain him or her in [a prescribed manner and place until such person’s prima facie status or 15 citizenship is ascertained] terms of section 34. ( 2 ) Any person who assists a person contemplated in subsection (1) to evade the processes contemplated thatsubsection, or interferes with such in processes, shall be guilty of an offence.”. Amendment of section43 of Act 13 of 2002 41. Section 43 ofthe principal Act is herebyamended by the substitution for 20 paragraph (a) of the following paragraph: “ ( a ) abide by theterms and conditions of his or her status, including anyterms and conditionsattached to the relevant permitbythe [Department] DirectorGeneral upon its issuance, extension or renewal, and that status shall expire upon the violation of those conditions; and”. 25 Substitution of section 44 of Act 13 of 2002 42. The following section is hereby substituted for section 44 of the principal Act: “Organs of [State] 44. When possible, any organ of [State] g shall endeavour to ascertain a & the status or citizenship of the persons receiving its services and shall report 30 to the [Department] Director-General any illegal foreigner, or any person whose status or citizenship could not be ascertained, [advising through publicnotices or directlythepersonconcerned of suchreporting shall not prevent the rendering of practice,] provided that such requirement services to which illegal foreigners and foreigners are entitled under the 35 Constitution or any law[, including the law of contract].”.

58

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

18 OCTOBER 2004

Act No. 19,2004

Substitution of section 45 of Act 13 of 2002 43. The following section is hereby substituted for section 45 of the principal Act: “Other institutions
45. Prescribed institutions or persons other than organs of [State] may, in the prescribed manner, berequired [by regulation]to endeavour to 5 ascertain the status or citizenship of the persons with whom they enter into commercial transactions, as prescribed, and shall report to the [Department] Director-General any illegal foreigner, or any person whose status or citizenship could not be ascertained, provided that such requirement shall not prevent therenderingof services or performance towhich illegal 10 foreigners and foreigners are entitled under the Constitution or any law[, including the lawof contract].”.

Repeal of section 47 of Act 13 of 2002 44. Section 47 of the principal Act is hereby repealed. Amendment of section 49of Act 13 of 2002 45. Section 49 of the principal Act is hereby amendedby the substi&ion for subsections (1) and ( 2 ) of the following subsections, respectively: “( I)(a) Anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of offence and liable on conviction an to a fine or to imprisonment not exceeding three months. (b) Any illegal foreigner who fails to depart when so ordered by the [Department] Director-General, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding nine months. (2) Anyone who knowingly assists a personto enter or remain in, or depart from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction toa fine or to imprisonment not exceeding one year.”; by the substitution for subsections (6), (7), (8) and (9) of the following subsections, respectively: “(6) Anyone failing to comply with one of the duties or obligations set out under sections [42] 2 to 46 [of this Act], shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding 18 months. (7) Anyone participating in a conspiracy of two or more persons to conduct an activity intended to [violate] contravene this Act [repeatedly], shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years, provided that if part of such activity is conducted or intended to be conducted ina foreign country, the offence shall be punishable by imprisonment not exceeding four years without the option of a fine. (8) Anyonewhowilfully or through gross negligence produces a false certification contemplated by this Act, shall be guilty of an offence and liable on convictionto a fine or to imprisonment not exceeding one year[, and shall be suspended from the relevant professional association for a period not exceeding two years].
15

20

25

30

35

40

60

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT ACT, 2004

Act No. 19,2004

visa;

(9) Anyone, other than a duly authorised civil servant, who [produces] manufactures or provides or causes themanufacturing or provision of a document purporting to be a document issued or administered by the Department, shall be guilty ofan offence and liable on conviction to a fine or imprisonment not to exceeding two years.”; (c) bythesubstitutionin subsection (11) forthe expression “37(10)” of the expression “34(IO)”; (d) by the substitution for subsection (12) of the following subsection: “( 12) A [Court] may make an order as to costs in favour of the Department to the extent necessary to defray the [costs] expenses referred to in section [37]%(3) against(a) any illegal foreigner referred to in [subsection] section [37]34(3); ( b ) any person who contravened section [45] 38 or 42; (e) anypersonwho conveyed into theRepublica foreigner without the transit required or (d) any person who committed an offencecontemplatedin [subsections] subsection (5), (7), (8) or (IO), which order shall have the effect of a civil iudgment of that court.”; and ( e ) by the addition of the following subsections: “(13) Any person who pretends to be, or impersonates, an immigration officer shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years. (14) Anypersonwho forthe purposeofentering or remaining in, or departing from, or of facilitating or assisting the entrance into, residence in or departure from, the Republic, whether in contravention of this Act or not, commits any fraudulent act or makes any false representation by conduct, statement or otherwise, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years. (15) Any person who(a) for thepurpose of entering the Republic, or of remaining therein,in contravention of this Act, or departing from the Republic, or of assisting any other person so as to enter or so to remain or so to depart,utters, uses or attempts to use(i) any permit, certificate, written authority or other document which has been issued by lawful authority, or which, though issued by lawful authority, he or she is not entitled to use; or (ii) any fabricated or falsifiedpermit, certificate, writtenauthority or other document; or ( 6 ) without sufficient cause has in his or her possession(i) any stamp or other instrument which is used or capable of being used for purposesfabricating of or falsifying or unlawfully recording on any document anyendorsement under this Act or required to be submitted in terms of this Act; (ii) any form officially printed for purposes of issuingany permit, certificate, written authority or other document under this Act or required to be submitted in terms of this Act, any reproduction or or imitation of any such form;

5

10

15

20

25

30

35

40

45

62

No. 26901

GOVERNMENT GAZETTE, 18 OCTOBER 2004 IMMIGRATION AMENDMENT

Act No. 19,2004

ACT, 2004

(iii) any passport, travel document, identity document or otherdocument usedfor the facilitation of movement across borders, which is blank or reflects particulars other than those of the person in whose possession it is found; or (iv) any fabricated or falsified passport, travel document, identity document or other documentused for the facilitation of movement across borders, shall be guilty of offence an and liable on conviction to a fine or to imprisonment for a period not exceeding fouryears. (16) Any person w h o (a) contravenes or fails to comply with any provision of this Act, if such contravention or failure is not elsewhere declared an offence, or if no penalty is prescribed inrespect of an offence: or (b) commits any other offence under this Act inrespect of which no penalty is elsewhere prescribed, shall be guilty of offence an and liable on conviction to a fine or to imprisonment not exceeding two years.”.

Amendment of section 50 of Act 13 of 2002
46. Section 50 of the principal Act is herebyamended by the substitution for subsection ( 3 ) of the following subsection: 20 “(3) Any owner or [master of a ship] person in charge of a conveyance who through negligence contravenes the provisions of section 3 5 m shall be liable to an administrative fine of a prescribed amount exceeding R10 000, which fineshall not be imposed by the [Department]Director-General.”.

General

25

47. The principal Act is hereby amended(a) by the substitution for italic type-face of ordinary type-face wherever it occurs in the text of the principal Act, excluding numbers;and (b) by the substitution for the word “Department” of word the “DirectorGeneral” in sections 13(1) and (3), 17(1), 20(2), 22, 25(4), 28, 33(13), 34(3) 30 and (9), 38(4), 46(2) and (3) and 50(1) and (2), wherever it occurs.

Substitution of Schedule 3 to Act 13 of 2002
48. The following Schedule hereby substituted for Schedule 3 to the principal Act: is

“[Laws] A A repealed [or amended]
No. and yearof [law] A S

Short title
Control Act, 1991

Extent of the repeal [or amendment]
The whole repealed Aliens

35

Act No. 96 of 1991
No. 75 of 1995

Act, 1995

The whole repealed Aliens Control Amendment Act 40

64

No. 26901

GOVERNMENT GAZETTE, IMMIGRATION AMENDMENT ACT, 2004

I8 OCTOBER 2004

Act No. 19,2004

Transitional provisions
49. (1) Subject to this section(a) the provisions of this Act shall not affectanything done or omitted in terms of

the principal Act before the date of commencement of this Act; and ( b ) anything done under provisions the of the principal prior Act to the 5 commencement of this Act, which can be done under the principal Act as amended by this Act, shall be deemed to have been done under the principal Act as amended by this Act. ( 2 ) Despite section 4(7) of the principal Act, theMinister may on or afterthe date of commencement of this Act dissolve the Board and appoint a new Board: Provided that 10 the tenure of the Board and Chairperson shall continue until such appointment becomes effective. (3) The staff appointed by the Board prior to the commencement of this Act shall be deemed to have been designated by the Director-General in terms of this Act. (4) All matters in respect of exemptions for consultation with the Board which were 15 pending upon the date of promulgation of this Act must be disposed of by the Board prior to the appointment of the new Board contemplated in subsection ( 2 ) . ( 5 ) An application for a permit in respect of section 26(b) of the principal Act, submitted prior to the amendment of that section by this Act, shall be dealt with and finalised terms that prior in of section to its amendment by this Act. 20

Short title and commencement
50. This Act is calledtheImmigration Amendment Act, 2004, and comes into operation on a date determined by the President by proclamation in the Gazette.