A rule that always existed, but never quite applied
Few provisions in South African immigration law have, in the span of a few weeks, generated as much confusion, frustration and disrupted relocation as Regulations 9(5) and 9(8) of the Immigration Regulations, 2014. The provisions themselves are not new. They have been on the statute book since the regulations were promulgated in May 2014. For more than a decade, however, they were applied with a measure of flexibility that allowed the system to function. That flexibility appears to have evaporated, seemingly overnight, and without announcement.
The result is a regulatory regime that is technically lawful but practically punishing — one that is now rejecting otherwise compliant applications on purely procedural grounds, and forcing lawful residents to leave the country they live and work in simply because an appointment could not be secured in time.
This piece sets out what the rule says, where it came from, why its sudden revival is legally and constitutionally questionable, and what affected foreign nationals, employers and practitioners ought to be doing about it.
What the rule actually says
The Immigration Act, 13 of 2002, and its regulations have always regulated when a visa application must be submitted. Under the current scheme introduced in May 2014:
- Regulation 9(5) provides that an application for a change of status or change of conditions of a temporary residence visa must be submitted at least 60 days prior to the expiry of the existing visa.
- Regulation 9(8) provides that an application for the renewal or extension of a temporary residence visa must likewise be submitted at least 60 days prior to expiry, save that where the visa was issued for a period of less than 30 days, the application must be submitted no later than 7 working days prior to expiry.
Both provisions are framed in peremptory terms. The word “shall” governs each condition. There is no in-built discretion. There is no good-cause proviso. There is no internal mechanism for accommodating exceptional circumstances.
For more than a decade, these provisions co-existed alongside an administrative practice that quietly absorbed late submissions, particularly where the foreigner could demonstrate that the delay was beyond their control. That practice has now been withdrawn — or, more accurately, the strict letter of the regulation is now being enforced as if the practice never existed.
In recent weeks, this single reason — late submission relative to the 60-day or 7-working-day window — has become one of the most consistently cited grounds for the rejection of otherwise compliant visa applications. Twelve years after the regulation came into force, and with no public announcement, it has quietly become the most consequential provision in the entire immigration scheme.
A more sensible predecessor
What makes the present position particularly difficult to defend is that it represents a regression from the position that prevailed under the previous regulatory regime.
Under the pre-2014 Immigration Regulations, regulation 7(6) provided as follows:
“A foreigner who is in the Republic and applies for a change of status or conditions relating to his or her temporary residence permit, or for an extension of the period for which the permit was issued, shall submit his or her application at least 30 days prior to the date of expiry of that permit: Provided that — (a) in the case of a permit issued for less than 30 days; or (b) where such foreigner failed to comply with this sub regulation, the application shall only be accepted within the validity period of the permit and upon the foreigner having demonstrated to the satisfaction of the Director-General that good cause exists for acceptance of the late application.”
Two features of that earlier provision deserve emphasis.
First, the baseline timing was 30 days, not 60. That was a more realistic window in a system where documentary requirements (police clearances from multiple jurisdictions, medical certificates, SARS confirmations, employer letters, bank statements, sworn translations, apostilled qualifications) routinely take weeks to assemble.
Second, and far more importantly, the regulation contained an in-built relief mechanism: the good-cause proviso. Where a foreigner had not complied with the timing requirement, the application could still be accepted within the validity period of the permit, provided the foreigner satisfied the Director-General that good cause existed for the late submission. The system therefore recognised, on its face, that life intervenes — that documents are delayed, that employers shift relocation dates, that medical procedures run over, that births and deaths and family emergencies happen, and that an administrative timing rule should not be allowed to produce absurd or disproportionate outcomes.
That proviso was a small but vital piece of legislative engineering. It maintained the integrity of the timing requirement while preventing the system from punishing the compliant for circumstances they could not control.
When the 2014 regulations were promulgated, the good-cause proviso was removed. The window was lengthened from 30 to 60 days, presumably on the assumption that a longer window would itself absorb the flexibility that the proviso had previously provided. For more than a decade, departmental practice appeared to confirm that assumption. Late applications were not routinely rejected on timing grounds alone. Until now.
The new operating environment makes the rule far harsher than it looks on paper
It is not enough to read Regulations 9(5) and 9(8) in isolation. They have to be read against the operating environment in which applications are actually submitted today — an environment that did not exist when the regulations were drafted in 2014.
Applications are no longer simply submitted. They are submitted by appointment, exclusively through VFS Global, which operates as the Department of Home Affairs’ service-delivery partner for in-country visa applications. VFS appointments are not freely available. They are released in tranches, frequently exhausted within hours, and routinely unavailable in the timeframes the regulations demand.
A foreigner who is fully ready to submit, with every document in order, may simply be unable to find an appointment within the 60-day window through no fault of their own. The bottleneck is structural. It is not a matter of personal organisation, prudence or foresight.
This produces a peculiar legal outcome: a regulation that, on its face, imposes a duty on the applicant, has in practice become a duty whose fulfilment depends on the appointment-allocation capacity of a third-party service provider. When that capacity fails — as it routinely does — the consequences fall on the applicant, not the system.
The result is that a rule which was already strict in theory has become, in practice, a trap: compliance is required, but the means of compliance is rationed.
What happens when you miss the window
The consequences of falling outside the 60-day or 7-working-day window are severe and, for many applicants, surprising.
There is no internal remedy within Regulation 9 itself. There is no good-cause proviso. There is no late-acceptance mechanism. Section 32 of the Immigration Act, which permits the Director-General to deal with foreigners who have failed to renew their status due to circumstances beyond their control, does not assist either — because the person who has missed the 60-day window has not yet become an illegal foreigner as contemplated by that section. Their visa is still valid. They are still in lawful status. They simply cannot lodge their next application from within the country.
The practical effect is stark. A husband or wife on a spousal visa, a minor child on an accompanying-relative visa, or a lawful employee on a critical skills or general work visa — each of whom missed the 60-day window through no fault of their own — must:
- Leave the Republic before their current visa expires;
- Apply for the next visa from a South African mission abroad; and
- Wait, outside the country, separated from family, employer and home, for an outcome.
It is difficult to characterise this outcome as anything other than disproportionate. Families are separated. Employers lose key personnel. Children are pulled out of schools. Mortgages, leases and medical appointments are disrupted. All of this — not because the foreigner is non-compliant in any substantive sense, but because they could not secure an appointment in time.
A regulation drafted to impose discipline on the application process has become an instrument that punishes the compliant for the failings of the system itself.
The constitutional and administrative-law problems
The making of regulations under the Immigration Act is a statutory power, conferred on the Minister of Home Affairs by section 7 of the Act. The exercise of that power is administrative action. It is therefore subject to section 33 of the Constitution, which guarantees the right to administrative action that is lawful, reasonable and procedurally fair, and to the framework established by the Promotion of Administrative Justice Act, 3 of 2000 (PAJA).
Two broad lines of attack are available against the current formulation of Regulations 9(5) and 9(8), and the manner in which they are now being applied.
Failure to apply the mind
Administrators are required to genuinely apply their minds to the consequences of the rules they make. A regulation that creates obligations whose fulfilment depends on the capacity of a third-party service provider, without building in any mechanism to deal with the inevitable failures of that provider, raises a serious question about whether the rule-maker turned their mind to the practical operation of the rule at all.
There is no internal discretion. There is no good-cause relief. There is no transitional arrangement. There is no exception for unforeseeable circumstances. The provision sits as a flat, peremptory line in the regulations, indifferent to the system that surrounds it. That alone is a basis for a reasonableness challenge.
Disproportionate impact on constitutional rights
A rule that forces lawful residents to leave the country — and to be separated from spouses, children, employers, schools and homes — engages a long list of constitutional rights:
- The right to dignity (section 10);
- The right to family and parental care (sections 9, 28);
- The rights of the child, whose best interests are paramount (section 28(2));
- The right to fair labour practices (section 23);
- The right to freedom of movement and residence (section 21).
None of these rights is absolute. They can be limited. But any limitation must satisfy section 36 — it must be reasonable and justifiable in an open and democratic society, having regard to the nature of the right, the importance of the purpose of the limitation, the relation between the limitation and its purpose, and the availability of less restrictive means to achieve the same purpose.
It is hard to see how a rigid 60-day rule, with no relief mechanism, passes that test. The purpose of the rule — orderly processing — is plainly legitimate. But the means chosen are disproportionate, and a far less restrictive alternative is readily available. We know this because it used to exist: the good-cause proviso of the pre-2014 regulations achieved the same orderly-processing purpose without producing the constitutional collateral damage that the current rule now produces.
Reintroduction without notice
There is a further, and more textured, point. The 60-day rule has been on the books since 2014. In practice it appeared to fall into disuse for more than a decade. South African law does not recognise abrogation by disuse for statutory provisions in the same way it does for common-law rules. But the prolonged non-application of a peremptory rule, followed by its sudden and strict revival without any public announcement, raises a different question: one of legitimate expectation and procedural fairness.
Foreigners, employers, practitioners and even the Department’s own offices had organised their conduct around a particular operating reality. To reverse that reality overnight, without notice, without a transitional period, and without any guidance, is at odds with the procedural fairness obligations that section 33 of the Constitution and PAJA impose on the State.
What affected foreign nationals and employers should be doing now
While the broader legal questions work themselves through, there are practical steps that those affected ought to be taking immediately.
Plan around 90 days, not 60. The regulatory window is 60 days, but the binding constraint in practice is appointment availability. Working back from visa expiry, the realistic planning horizon is closer to 90 days. Employers managing rolling visa portfolios should reset their internal calendars accordingly.
Treat appointment availability as a documented risk. Where an appointment cannot be secured within the regulatory window, the attempts to obtain one — dates searched, times attempted, screenshots of availability — should be carefully recorded. This documentary trail matters, both for any internal appeal and for any future review proceedings.
Do not allow the visa to lapse in the hope of relying on section 32. Section 32 contemplates the foreigner who is already illegal. It does not assist the person who is still lawfully in the country but unable to lodge an application. Allowing the visa to expire converts a procedural problem into a substantive one, and exposes the foreigner to declaration as an undesirable person.
Consider whether departure and external application is, in fact, the worse option. In some cases — particularly for general work visa and critical skills visa holders with intact documentation — application from abroad may be quicker and cleaner than fighting an internal rejection. Each matter turns on its own facts. The point is that the decision should be taken deliberately, with advice, and not by default.
For multinational employers: audit your portfolio now. Any employee on a temporary residence visa expiring within the next 6 months should be flagged today. Where a 90-day-out submission is not feasible, planning for an offshore application or an alternative status pathway should begin immediately.
A regulation in need of reform
The 60-day rule, in its current form, is the product of a 2014 drafting choice that removed the good-cause proviso of the previous regulations on the apparent assumption that a longer window would render the proviso unnecessary. That assumption has been overtaken by the reality of an appointment-rationed application system that did not exist when the regulations were drafted.
What is needed is not the abolition of the rule. Orderly processing is a legitimate goal, and a properly enforced timing requirement serves that goal. What is needed is the restoration of the flexibility that the previous regime contained — a good-cause proviso, or an equivalent internal mechanism, that allows the Director-General to accept a late application within the validity period of the existing visa where the applicant can show that the delay was caused by circumstances beyond their control.
That single reform would preserve the discipline the Minister presumably intended when promulgating Regulation 9, while removing the disproportionate constitutional impact that the rule, in its current form, is now producing on a weekly basis.
Until that reform comes — whether through Ministerial amendment, judicial review, or both — the obligation falls on practitioners, employers and foreign nationals to navigate the rule as it stands, with their eyes fully open to what it now demands.