A recent Daily Maverick op-ed argued that South Africa’s immigration laws are complex to the point of ambiguity. However, ambiguity does not belong to the legislative framework but rather to the years of institutional fragility, careless drafting, contradictory communication and poor interpretative capacity within the Department of Home Affairs (DHA), all factors that have contributed uncertainty and eroded trust which Minister Leon Schreiber has been tasked to restore.
The Immigration Act sets the legislative framework and empowering provisions, and the Immigration Regulations give effect to the Act by prescribing procedural forms and substantive requirements. This system is designed to ensure predictability within a mutating system. As immigration law is a living system, constantly shaped by amendments, court orders and policy directives, its vitality and lawful application demand precision, understanding and upkeep. Staying current is not just essential for those rendering compliant legal advice, it is indispensable for the department tasked with adjudicating applications under the rule of law.
Understanding how amendments operate is crucial because their legal effect is narrow. An amendment only changes what it expressly states. Yet, when official drafting is careless, clarity is compromised, both for applicants and for adjudicators. Keeping up to date with and understanding case law’s impact on the normative framework is equally essential. A functioning democracy also hinges on institutional reaction speed, how fast understanding matures and everyday effective processes and policies that are capable of absorbing legal change.
Drafting pitfalls
The 2018 Immigration Regulations Amendment cited in the op-ed is a case in point; three missing characters “(a)” are not a simple oversight as these matter immensely from a legislative standpoint. The subsequent editorial note acknowledging the oversight in the consolidated version later produced is of little value – the damage had been done and persists. Consolidated versions exist as editorial tools of convenience, only the text in the Gazette is a legally authoritative source. The fact that subsequent amendments haven’t formally and authoritatively revisited the error, reinforces how disorganisation remains entrenched within Home Affairs.
Sadly, this is not a one-off anomaly. Examples abound: the 2022 Critical Skills List required multiple amendments to fix mistakes and omissions; the remote-work visa was introduced in May 2024 on shaky drafting and inadequate legislative backing, which led to its relaunch in October.
The latest Directive 22 of 2025
Temporary measures and concessions made in relation to the visa backlog have been similarly marred by drafting flaws, resulting in interpretation failures at borders and unwarranted declarations of undesirability.
The latest Directive 22 of 2025, published only last week (Friday, 26 September), similarly compounds confusion and uncertainty. Visa applicants with pending renewals and change-of-status applications have been suddenly excluded in the department’s self-celebratory claim of having “eradicated” the visa backlog. In its eagerness to celebrate an alleged “eradication” of the backlog, the department allowed pride to eclipse candour, failing to acknowledge that many applications remain mired in a de facto backlog, and those applicants still need the very protections they have relied on to date.
Only waiver and appeal applicants are covered by this concession. Inconceivably, the DHA had extended the favour of a blanket concession to individuals with pending permanent residence appeals, blatantly undermining the position that the submission of a permanent residence application (or appeal) does not grant a valid status to foreigners who are meant to maintain a valid visa at all times while in South Africa irrespective of a submitted permanent residence application. Once aware of the paradox, the department once again reversed course and published, on 30 September, “Amendments” as a hurried patch, revealing scant grip on conditions on the ground. Any reference to permanent residence appeals was quietly removed.
If anything, the latest temporary measures confirm, as anticipated, that a new backlog of appeals has materialised over the past year.
Institutional misinformation
Together, all these examples point to a persistent pattern of poor drafting technique, inadequate vetting and policy indecision. Inconsistent drafting erodes certainty, and in immigration law, uncertainty multiplies cost, litigation and violations of rights.
If the Gazette is meant to be the legal gold standard, the DHA’s own website is the polar opposite. Far from clarifying, it compounds confusion. Pages are riddled with archaic content, inconsistent updates and unlawful pronouncements.
At the top of the page listing documents for permanent residence applications under section 27(g) of the Immigration Act, in bold red text, it declares: “Applicants applying under a minor South African child do not qualify. Applicants applying through a Permanent Residence holder who obtained status as a relative do not qualify.” This statement is arbitrary and wrong in law. Yet, for an unsuspecting applicant, or even a junior official, it masquerades as authoritative.
Appeals: a remedy, not an answer
The DHA is quoted to have said that “such rejections should not be taking place” and that aggrieved applicants can “simply” appeal. This statement from within the department’s own ranks is not reassuring – it is an admission that the department has collapsed in controlling its own adjudication function. Appeals are not a fix; they are a burden. They cost time, money and energy – particularly for applicants whose ability to work, study or remain lawful hinges on the outcome. Worse still, appeals are slow. Delays stretch into months or years, during which individuals are left in legal limbo.
If appeals are the only internal mechanism to correct blatant administrative errors, the system is broken. When those errors stem from the department’s failure to train adjudicators in basic interpretive principles, the promise of an internal remedy rings hollow.
Ignored court orders compound the problem
This institutional fragility persists even in the face of binding Constitutional Court orders. Take the December 2023 landmark Rayment judgment where the court provided a temporary “read-in” to section 18 of the Immigration Act, creating what is now known as the “parental visa” in terms of section 18(2) of the Act, to protect the rights of parents of South African minor children.
The read-in was intended as a stopgap measure for 24 months while Parliament enacted corrective legislation. This is the law, not a policy suggestion, not a guideline, but a constitutional imperative. Yet, the DHA has failed to operationalise it. No instructions have been issued to VFS Global to make the visa category selectable for an applicant. No training has been provided to front-line adjudicators. Applicants remain at the mercy of officials who mostly remain unaware that the visa even exists.
As appeals are only a viable remedy for applicants aggrieved by a rejection, parents who apply for a parental relative visa and are consistently issued relative visas without the work authorization, are forced to seek placebo effect remedy by submitting rectification applications which equally take forever to be processed when at all, and which, disturbingly, still rely on a minimal achieved level of legislative literacy on the part of the DHA to be processed correctly and within parameters set by the Constitutional Court.
When court-ordered relief evaporates in practice, the problem is no longer legal complexity, it is institutional incapacity.
The real horror: guesswork belongs to the State
Indeed, the law should be accessible and comprehensible. In a constitutional democracy, it should not require deep investigation and guesswork. If the applicant’s guesswork were the only problem, it would be bad enough. The truly alarming reality is that guesswork is happening inside the state, by the very officials who draft, interpret and implement the law. That is far more troubling.
Institutional uncertainty coupled with informational uncertainty are the two major aspects for the so-called politics of uncertainty which authoritative regimes strive on. South Africa deserves better than this. This is not just about compliance; it is about fairness, efficiency and preserving trust in the rule of law. DM