In my 12 years of working in the field of SA immigration, I have written many an article on many aspects of SA immigration. But none of these articles have ever been so difficult to put to paper as this one. Yet it is perhaps one of the most consequential that I have written. Perhaps it is the weight of the information that I will share in the following paragraphs that will no doubt cause much discomfort in many that come across this article, but I feel it my duty to shine a light on an issue that has been lingering in many people’s minds. What are the origins of the 1996 Exemption Permit and is the one I am holding the real deal?
I first came across this exemption permit back in 2014 while consulting with a client who had lost his Permanent Residence certificate and needed to apply for a replacement. Like many in this position, we prepared and submitted the application for Proof of PR at VFS, and then after 6 months of waiting, the outcome returned a surprise that there was no record of such a permit being issued. Yet the person told me of how they had been assisted by a lawyer to apply for the permit, had submitted their documents at Home Affairs in person, had their fingerprints taken, and even received the 2 SMS notifications, one noting receipt of the application and another noting its finalization. Importantly, in applying for his non-citizen ID, the exemption permit was verified and the ID was issued.
As the years went on, we continued to come across these exemption permits and most of these individuals had similar stories. So it became a particular point of interest for me, culminating in this piece.
To answer the question in the introduction, we must first get the historical context of the immigration landscape to understand the genesis of this permit issued in 1995 and 1996 under the Aliens Control Act.
During apartheid, the regime of the day used many tools to disenfranchise Africans, both local and foreigners alike. The local population was controlled through the influx control system and pass laws, and the foreigners were controlled through various bilateral labour agreements which placed them under the control of the Employment Bureau of Africa (TEBA). Labor was a huge commodity in the 1960s, and neighbouring countries would benefit from the remittances of these workers. Some statistics say at its peak between 1960 and 1980, 80% of the labour in South African mines were black foreign nationals. Similar numbers were recorded on the farms.
Another key period was the 1978–1988 period of the so-called Total Strategy against total onslaught by the government of PW Botha. During this period, apartheid South Africa played key roles in destabilizing the then frontline states. This period saw the Mozambican civil war, the Angolan civil war, embargoes on Lesotho and Swaziland, attacks on Zimbabwe, all in response to those countries growing public opposition to the regime in South Africa and their open support for the ANC. Throughout this period, many would flee from neighbouring countries into the Homelands whose people gave them a safe place to stay, while the government in Pretoria would not recognize these refugees.
With the coming of independence in 1994, the Homelands were done away with, and so were the bilateral labour agreements that brought so many to South Africa over many decades. While the new government of that time was equally tough on immigration, there was a sense of sympathy for these various groups that had by no fault of their own been left undocumented. This culminated in 2 exemption programs granting these individuals an amnesty and an opportunity to apply for permanent residence with certain special conditions.
The first exemption was in 1995 aimed at offering permanent residence status to foreign mine workers who had been in the country since 1986. The second one was in June of 1996. In early 1996, the South African cabinet agreed to grant a limited amnesty to nationals of Southern African Development Community (SADC) countries. According to the conditions announced by Minister of Home Affairs Mangosuthu Buthelezi on June 4, 1996, and additional conditions contained in internal Department of Home Affairs guidelines, citizens of the SADC countries would be granted permanent residence if they could prove they had continuously lived in South Africa since at least July 1, 1991, had no criminal record, and were either economically active or married to a South African, or had dependent children who were born or were residing lawfully in South Africa.
Each exemption had a cutoff date for one to apply which meant that you could not apply for this exemption after the cut-off date. It was expected that about a million persons would be documented in this process, however, less than 200,000 were granted permanent residence. The program was deemed a failure as a result of the onerous requirements but more importantly, it left many permits uncollected at various Home Affairs application offices.
What followed thereafter has been that unsuspecting people who came after the exemption application period had closed continued to apply for these permits and be issued these documents. Those who came earlier in the process received their permits and, like the individual I met in 2014, had received their IDs. Then there are those who came later when, internally, the department had caught on to the scheme and did not receive the IDs but continued to live and work in South Africa, raising families not knowing the insidious poison they were holding until they are told their permit is not in the system and whole families are upended.
In March 2021, the Minister of Home Affairs announced that a task team would be reviewing permits issued from 2004 and again in February this year, the President signed a proclamation authorizing the SIU to investigate matters arising from that task team’s report. A number of people have been made uneasy by these proclamations and with just cause. Many have not had reason to doubt their status because they have used it for over 20 years. However, this is not a safe argument. Section 48 of the Immigration Act provides that no illegal foreigner shall be exempt from a provision of this Act or be allowed to sojourn in the Republic on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain in the Republic through error or misrepresentation, or because his or her being an illegal foreigner was undiscovered.
Being in possession of a fraudulent visa, permit, or ID is an automatic prohibition in terms of section 29(1)(f). This also includes fraudulently obtained documents. The Immigration Act in section 29(2) does, however, provide for rehabilitation pathways for persons in such a position. As with anything insidious, it is always better to act sooner rather than later as waiting is more detrimental.
Under section 29(2), individuals designated as prohibited persons are entitled to request that the Director General reevaluate their status. When submitting this request, it is crucial for the applicant to provide a comprehensive account of the reasons behind their prohibition, supported by relevant evidence such as third-party involvement and their connections within the republic. Additionally, they should include any factors they believe are pertinent to the decision.
If you suspect that a permit issued during the review period may not withstand legal scrutiny, you are advised to promptly verify its validity to ensure compliance with legal standards.