The Mother City dwarfed by Table Mountain soon after sunset. Home Affairs has told visitors hoping to extend their stay by a further 90 days that they must leave two months earlier than they would otherwise have expected. (Photo: Seán Culhane) 
Sun chasers or “swallows” who haven’t received a visa renewal by 23 February have been advised to heed the latest Department of Home Affairs’ (DHA) directive instructing them to leave South Africa by the end of February, or risk being banned.
The surprise directive, published on 21 December 2023 and titled “Concession: extension of temporary concession in respect of foreign nationals in light of a continued backlog in processing outcomes on waiver applications, visa applications and appeal applications” notes that short-term visas that were issued in terms of section 11(1)(a) of the Immigration Act “for 90 days or less, up to and including 30 November 2023, who have applied for a renewal of the visa have not received the visa renewal outcome by 23 February 2024, they must make the necessary arrangements to depart from South Africa on or before 29 February 2024 to avoid being declared and desirable (sic)”.
The Border Management Authority is under strict instructions from the DHA to enforce the directive, which at the same time gives foreigners whose waiver and visa applications were still pending as at 30 November 2023, including long-term visas such as business, study, relatives or work visas, another extension. Applicants falling under these categories have been given extensions until 30 June 2024 on their current visa status.
This, despite the DHA’s own inefficiencies and incompetence to complete what should ordinarily be a simple task: South Africa grants short-term visas on arrival to a raft of countries and territories, including Canada, the European Union, and Namibia for 90 days. During this time, theoretically, visitors can apply for an extension of a further 90 days. Due to corruption and ineptness within the department, it is unable to do so in a reasonable time.
Swallows, who chase the sun, have grown accustomed to using their six-months in the country to their advantage, where they bask in a Mediterranean climate for a fraction of the cost of a European holiday. Their euros, pounds and dollars stretch further at our resorts, game reserves, in the winelands and at restaurants, making South Africa an attractive option for visitors, particularly retirees.
The eleventh-hour 21 December directive cut short their hopes of a longer stay in SA, forcing visitors to leave two months earlier than expected or risk being declared “undesirable” and banned.
This is causing immense uncertainty in the market and making South Africa less appealing to tourists, said Dirk Meissner, the managing director of Wanderlust, an immigration and naturalisation service in Stellenbosch.
Lost opportunity
In what should be a simple process to extend their stays in SA for a total of 180 days, the department is messing up, said Meissner, noting that the DHA made two critical mistakes, by omitting mention of retired visas and botching the pending 90-day extensions. “We had a lot of swallows coming in early in October/November and duly submitted their visa extensions, planning on staying 180 days, as they may. So typically they would like to stay until April but now have to leave on 29 February 2024.
“The word economic sabotage, especially here in the Western Cape comes to mind.”
Swallows are a strength for the province, because of their investment in the Cape and their consumption, Meissner said — from hospitality, to suppliers, and services. “Everyone smiles and is grateful for what they receive. Does our Home Affairs Minister really sit in such isolation that he does not see any of this, the desperation of South Africans for these kinds of jobs and contributions?”
Visitors do not know how long the visa extension application will take and in many cases, the outcomes are only delivered months later.
“The average processing time is 132 days, for a simple 90-day visa. Some (of my clients’ applications) are still pending since January last year. About 90% of swallows have property in the Western Cape.”
Misery loves company
Kristina Gromova of De Jure Immigration agreed, saying spouses have been separated from each other, and children are separated from their parents. “Some have missed out on important family occasions, including the opportunity to say goodbye to a loved one who passed away, graduation ceremonies, weddings of close family members, anniversaries, etc, because of the fear of not being able to return once they have departed.”
Previously, it was quite simple to apply for some visas, Gromova said, but the “verification” process that the DHA has implemented is causing further delays as not all institutions respond immediately or at all — for example banks in Europe will not verify or confirm details regarding their clients’ financial standing when asked to do so by the DHA due to privacy and banking laws applicable in those countries.
2023 was a particularly bad year, explained Stefanie de Saude-Darbandi, another immigration attorney, whose firm led almost 90 high court cases, including four delay cases representing close to 800 outstanding visa applications.
“The duty rests on (the DHA) to process these applications. People are applying in time, especially swallows who do nothing other than spend money here.”
What to do?
Motsoaledi’s “backlog eradication plan” for residency permits and visas has failed to clear the backlog, with the minister telling Parliament last year that the backlog remained at almost 75,000, with an additional backlog of 44,000 in permanent residency permits.
There are “formidable” backlogs in the approval process: Despite losing in the Supreme Court of Appeal, where the court was critical of the minister’s ultimate responsibility for the department’s behaviour, the delays have also worsened.
A leaked memorandum from the State Attorney’s office on class action suits is scathing of the impact the delays, the DHA’s conduct — and consequent litigation — has on the government. The memo, drafted by Shireen Karjiker, Dalphine Smith and Sachin-Lee Simpson, says SA remains a destination of choice for foreigners wanting to migrate here but that they are concerned that the DHA’s inability to adjudicate permits are spawning litigation and escalating legal costs.
The memo states that after the DHA lost a case brought by De Saude’s firm in the Supreme Court of 2017, courts have issued cost orders worth millions of rands against the department, with numerous matters still pending.
“It can safely be noted that it is very apparent that nothing has changed since the De Saude SCA judgment. There is still an overwhelming number of permits in the system at DHA that require adjudication and backlog that has no end in sight…”
Buck stops here
Noting a recent Constitutional Court judgment in favour of Lawyers for Human Rights, the office said that here was not even the remotest hint of an apology by Minister Aaron Motsoaledi and Director General Livhuwani Tommy Makhode for the “deplorable state” of Home Affairs, nor the fact that Makhode admitted to signing an affidavit without “applying his mind” to the contents.
“Our opponents are most definitely going to capitalise on this judgment.”
Attorney Gary Eisenberg said he has been “in constant” litigation against the DHA over the past 20 years. “Home Affairs is no longer in compliance with the Constitution and is a rogue department. It does not comply with the Bill of Rights or with court orders. That is a major problem. Unfortunately, in as much as 50% of the time, it does not comply with the orders. You first have to go back to court for contempt proceedings to enforce the order. And that is shocking.”
The DHA failed to respond to requests for comment.
For now, De Saude warns visitors who have a short term visa application pending that they must leave by the end of February, because if not, they will be declared “undesirable”.
“Follow the waiver because these officials have strict instructions to apply the blanket waiver.”