1. What Home Affairs don’t want you to know- Change of Conditions and Change of
Status under the Immigration Act 13 of 2002(As amended)
1. On the 22nd day of May 2014, the Minister of Home Affairs though Government
Gazette No. 37679 promulgated the Immigration Regulations that ushered a new
era of how to manage the change of conditions and change of status in terms of
the Immigration Act 13 of 2002 (as amended) (The Act).
2. Things and myths beyond the depth of this article have been said about who can
and who cannot apply for a visa within the Republic.
3. “Application” means a request in the prescribed form which complies with the
requirements and provides the information and documentation which may be
prescribed.
4. “visa” means the prescribed endorsement issued upon application on the valid
passport of a foreigner granting such foreigner the authority to proceed to the
Republic to report for a prescribed examination to an immigration officer at the
port of entry with a view to admission on a specified temporary residence, which
at any time before admission may be withdrawn by the Department.
5. The term “status” is defined in section 1 of the Act as the permanent or temporary
residence issued to a person in terms of this Act and includes the rights and obligations
flowing therefrom, including any term and condition of residence imposed by the
Department when issuing any such permits (visas).
6. Put differently, it is the legal standing of that particularly person to sojourn the republic
based on the visa or permanent residence so granted.
7. In other words, if you hold any visa or permanent residence permit, the status would be
determined by the type of visa or permanent residence you hold in that regard.
8. A visitor's immigration status depends on the type of visa he/she used when applying to
enter the Republic and sojourn thereby.

2. 9. According to Department of Home Affairs, compliance with the visa's specific
requirements will determine whether the foreign person is "in status" or "out of status”.
10.Each visa classification has a specific purpose and requirements that the visa
holder must follow to remain in status and stay in the Republic lawfully.
11.For example the accompanying spouse visa prohibits the taking up of
employment.
12.Such requirements are prescribed by the conditions that are attached to the
status thereof.
13.Status may have been to study and now the visa holder wants to work.
14.The general rule is that the applicant for change of status should continue to
follow the requirements of his/her current visa until he/she receives authorization
from the Department of Home Affairs.
15.The act does not define the word “condition”.
16.There are references made to the power of the Director General in broad strokes
to impose any reasonable “terms” and “conditions” to a permit or visa as the case
may be.
17.This makes it even imprecise and lacks direct meaning which can then guide
applicants intending to change their status and/or conditions.
18.For example, the work visa may have a condition that the holder of the work visa
take up employment with a certain company, in a certain defined position for a
number of years or a certain period.

3. 19.In terms of Regulation 9(7) of the Regulations, the individual terms and
conditions contemplated in section 10(5) of the Act with regard to a visa shall
relate to, but not be limited to:
19.1. limitations on the type of activities that may be undertaken in the Republic;
19.2. the places where the activities contemplated in paragraph (a) may be
undertaken;
19.3. the types of commercial activity that may be practised;
19.4. the submission of proof of sufficient financial means;
19.5. limitations on the period of the visit or the validity of the visa; or
19.6. Cancellation of the visa in the event the holder has been convicted of any
offence under the Act or any other law.
20. Section 10(6) of the immigration Act provides that a foreigner other than the holder
of a medical treatment visa or visitor’s visa, may apply to the Director General, in the
prescribed manner, to change his or her status or terms and conditions attached to his
or her visa or both such status and terms and conditions….
21. This section has created a lot of uncertainties instead of a safe bet in the application of
the regulations pertaining to the change of conditions and/or status.
22. In terms of Regulation 9(9), the exceptional circumstances contemplated in
section 10(6)(b) of the Act shall be(in respect of a visitor’s visa):
22.1. is in need of emergency lifesaving medical treatment for longer than three
months;
22.2. is an accompanying spouse or child of a holder of the business or work visa,
who wishes to apply for a study or work visa; or
22.3. in respect of a holder of a medical treatment visa, be that the holder's
continued stay in the Republic is required for any purpose related to a
criminal trial in the Republic: Provided that such application shall be initiated
by the relevant Deputy Director of Public Prosecutions and addressed to the
Director-General.

4. 23.As to who qualifies to apply for change of conditions, the Act excludes only the
holder of a visitor’s visa or port of entry visa and medical treatment visas from
applying for a status from within the Republic.
24.There is further relief by way of adducing and calling into aid the provisions of
section 31(2) (c) of the Act by approaching the Minister’s office to get an
exemption thereof.
25.This is precipitated on good cause being shown to the Minister thereof.
26.Another category omitted by the regulations, are the spouses to South African
citizens and permanent residence holders, inclusive of their dependents.
27.In Dawood and Another v Min of Home Affairs and Others; Shalabi and Another v
Min of Home Affairs and Others; Thomas and Another v Min of Home Affairs and
Others 2000 (1) SA 997 (C) it was held to be unconstitutional to require the
spouses of South African citizens to apply for permits abroad.
28. The same issue was revisited in Stewart & Others v Minister of Home Affairs &
Another [2016] ZAWCHC 20 (29 January 2016).
29.The applicants directed their challenge, inter alia, at the constitutionality of the
alleged requirement, in s.10(6) of the Immigration Act, that the foreign spouse of
a South African permanent resident wishing to apply for a “spousal visa” must
apply from outside the country; and secondly, against the department’s decision
to reject the second applicant’s application for a “spousal visa”.
30. The aforementioned relief was sought in terms of s.172 (1) (a) of the
Constitution Act 108 of 1996 . Ancillary to that relief, the applicants also sought
an order substituting the department’s decision to refuse second applicant’s
application for a “spousal visa” with an order that such a visa be issued to the
second applicant forthwith.

5. 31.Another salient reference in this regard is the case of Booysen and Others v
Minister of Home Affairs and Another 2001 (4) SA 485 (CC).
32.This was an application for confirmation of the declaration of constitutional
invalidity of two sections of the Aliens Control Act, which dealt with applications
for work permits by foreign spouses of South African citizens or permanent
residents.
33.This occurrence has been dealt with as well in the case of Makinana and Others
v Minister of Home Affairs and Another; Keelty and Another v Minister of Home
Affairs and Another 2001 (6) BCLR 581 (C).
34.This matter involved a challenge to the constitutionality of certain provisions of
the Aliens Control Act which affected the rights of foreign spouses of South
African citizens and permanent residents to work in South Africa.
35.It is thus unconstitutional, to preclude spouses and children of citizens and or
permanent residence holders to apply for change of status, only to the extent that
it differentiates between spouses and children of holders of work and business
visas ,from, the rest of the visas holders and their families.
36.Thus the fact that one is a spouse or child of a citizen or permanent resident,
ought to establish grounds of good cause as to why one should have change of
status within the Republic.
37.An interesting observation that needs further noting is the mystery surrounding
the still to be entertained applications for change of conditions and/or status of
immigrants from Zimbabwe and Lesotho.
38.The Zimbabwean community was issued with the Zimbabwe Special Permit
(ZSP). A number of stringent conditions were attached to the ZSP Permit.
39.Similarly, the Lesotho Special Permit (LSP) is a permit issued by the Department
of Home Affairs.

6. 40.The special dispensation is for Lesotho nationals who are working, studying or
running businesses in the Republic of South Africa and has been in the country
in such capacity before 30 September 2015. Its course is run in similar fashion as
its predecessor the ZSP.
41.These two categories (the ZSP and LSP) are issued in terms of section 31(2)(c)
of the Act.
42.As such there are more akin to being exemptions than permits in the true sense
of the word, having regard to the proper purpose they were so issued for.
43.These two categories of special permits ex facie prohibit a change of conditions
and not status.
44.To prohibit the change of status for the ZSP and LSP holders would be
tantamount to an illegality never envisioned or anticipated in the application of
the Act.
45.It would render any decision to prohibit such a change of status ultra vires and in
conflict with the intention and purposes of the Act.
46.Thus change of status or conditions whilst in the republic is prohibited if you hold
a visitor’s visa or medical treatment visa.
Dated at Pretoria this 23rd day of June 2016
MacGregor Kufa
LLB, LLM (Unisa)
Advocate of the High Court of South Africa