Small Change, Big Consequences

Small Change, Big Consequences


The regulations, which came into effect on Monday, 26 May 2014, introduced a new visa regime for South Africa. One of South Africa’s premier immigration attorneys, Gary Eisenberg, shares his thoughts regarding these regulations and the impact they will have on foreigners and the South African economy. 

South Africa’s economy is not an island. Its labour force suffers from critical skills shortages, in the education, science, technology, trade and industry sectors.

The previous Minister of Home Affairs (2012-2014), Naledi Pandor, understood this reality better than most as she had the advantage of formerly serving as Minister of Education (2004–2009). In designing the amendments to the Immigration Act, which she brought into operation with a single business days’ notice on 26 May, she collapsed two distinct work permit categories into a single ‘critical skills’ work permit category.

But when the new law appeared, the critical skills list was not published, neither was the schedule of application fees, nor business permit related investment criteria, leaving the entire immigration system of South Africa in a state of paralysis.

Small oversight, big consequences

In short, the Minister promulgated a paradigmatically altered immigration regime almost inoperable without critical legislative components. For a country purporting to be internationally competitive as a talent and investment destination on the African continent, it has failed, with no excuse.

Even once these missing previsions of legislation are published and brought into operation, the bureaucratic layers now forced upon employers and investors will no doubt push critical skills and entrepreneurs away towards more inviting jurisdictions.

One major change in these respects is the involvement of the Department of Labour (DoL) in issuing to enable the granting of general work permits to foreigners. In shifting the owners from the Department of Home Affairs (DHA) to DoL for immigration purposes politicises the entire question of employing a foreigner.

The DoL is notoriously protective of South African job opportunities. The (albeit unlawful) involvement of the DoL in the Corporate Permit application proses even under the former immigration regime, proved this point. These applications where hamstrung almost indefinitely due to the DoL’s intransigence.

What remains most worrisome is the DHA’s continued lack of internal capacity – its ability to understand and apply law correctly – and its efficiency failures in service delivery. The jury remains out as to whether the implementation of a far more complex realm of immigration regulation will improve this capacity crisis.