Agriculture, Economic Development and Tourism

1.These new immigration regulations will have a significantly detrimental impact on the economy of the Western Cape, in particular the tourism, film and call centre [business process outsourcing – BPO] industries. These are multi-billion rand industries in the Western Cape and in the rest of the country.  These sectors are key economic drivers and employers. Tourism alone employs 150 000 people and international tourists spend R18 billion in the Western Cape annually.

2. Specifically, the following practical issues are raised by the industries concerned:

[a] Section 11[2] visa applications now have to be made at the missions in the applicants’ country of origin [home country/country of residence];

[b] The applicant has to present him/herself at the mission, since the use of immigration practitioners for that purpose is prohibited through the repeal of section 46 [“Immigration practitioners”] of the principal act, read with, for example, regulation 9[2] and 10[2], which stipulate that the applicant must submit the application in person. This may involve several hours of travel to the mission nearest to the applicant, for example in countries like Australia and China;

[c] Both individual tourists and tour companies could be forced to consider alternative tourist destinations, due to cost and inconvenience associated with coming to South Africa, impacting on all aspects of tourism – “normal” tourism, medical tourism, study tourism, volunteer tourism, etc; and

[d] The same applies to the business community, and in particular investors in two major industries – BPO and film. Newspapers have in the past 2 weeks already reported on instances where filming had to be postponed and even cancelled due to the implementation of the new regulations.

3. Furthermore, some critics and commentators have raised the possibility that some of the provisions in the regulations may be unconstitutional. The following issues are of concern:

[a]  The fact that spouses, whether married or in a common law relationship, will have to prove as 2-year relationship before applying for a visa;

[b]  The fact that spouses of work visa holders are excluded from applying for certain visas in South Africa and will have to apply from abroad; and

[c]  The fact that a person [foreigner] who overstays may be declared “undesirable” [section 50[1] and regulation 39[1], and precluded from returning to the country, without an opportunity to challenge the said declaration.   

The Western Cape Government is investigating both the negative practical implications and claims of unconstitutionality of certain provisions contained in the regulations. Furthermore, we are seeking senior counsel’s opinion for use in an engagement with the Department of Home Affairs which has been provisionally scheduled for 9 July 2014