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What is a Ministerial Waiver / Exemption and how does it work

Source: DHA, 14/04/2021

Upon application to the Minister of Home Affairs, the Minister may under terms and conditions determined by him or her allow distinguished visitors or members of his/her family to be administered and sojourn in South Africa and or waive any prescribed (regulatory) requirements for good cause and/or grant any foreigner or category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist justifying such a decision.
S 31(2)(b) provides that the Minister may, upon application, grant a foreigner or a category of foreigners the right of permanent residence for a specified or unspecified period, when special circumstances exist justifying such a decision. The Minister may also exclude a foreigner or a group of ‘identified’ foreigners from such dispensation and may, for good cause, withdraw such right(s) from a foreigner or a category of foreigners. S 31(2)(c) provides that the Minister may for ‘good cause’ waive any prescribed requirement or form, in respect of any such application by a foreigner for the grant of permanent residence.
There are a myriad of circumstances that may arise wherein an applicant may apply to the Minister of Home Affairs to grant certain concessions in terms of section 31(2)(b) or under 31(2)(c) under the Immigration Act (the “Act”) that may pertain either to the acquisition of permanent residence “when special circumstances exist” or “for good cause, waive any prescribed requirement or form”.
The Minister is empowered in terms of the Immigration Act to “waive” any regulatory requirement or form. A foreigner may apply for such waiver on the basis that “good cause” exists for the granting of such waiver.
The term “good cause” has never been defined, either in terms of legislation or by the South African judiciary. In practical terms an applicant must demonstrate that there is compelling justification for the waiving of a regulatory requirement or form, and if the Department of Home Affairs (on behalf of the Minister) determines that a violation of a constitutional right, or an irrational consequence, will arise by a refusal to grant such waiver, waivers are normally granted.
A typical scenario necessitating a waiver under section 31(2)(c) would be where a specific requirement or form is applied to the Minister to be dispensed with.
Here are a few examples of waiver applications:
• A foreigner, sojourning in South Africa, has in the past submitted police clearance certificates from his country of residence of more than 12 months since his 18th One of those countries is Saudi Arabia. Since his last submission to the Department of Home Affairs of his Saudi Arabian police clearance certificate he has never returned to such country. He now intends to apply for permanent residence in South Africa and will, in terms of Immigration Regulation 23(2)(e) require a police clearance certificate from Saudi Arabia. Since he will not be able to acquire a new Saudi Arabian police clearance certificate without, at great expense and inconvenience, returning to that country physically to obtain one, he applies for a waiver from the aforementioned regulatory requirement in relation to a Nigerian ,USA or Saudi Arabia police clearance certificate if perhaps you have not lived there for 10 to 15 years and would have difficulty to obtain same . Such applications have been largely successful.
• A refugee sojourning in South Africa in terms of the Refugees Act wishes to apply for a critical skills work visa in terms of section 19(4) of the Immigration Act. In terms of Ahmed and Others v Minister of Home Affairs and Another [2018], ZACC 39 an asylum seeker or refugee sojourning in South Africa must first apply for a waiver from the requirements of Immigration Regulation 9, which includes the requirement that any temporary residence visa applicant must submit his or her application in person to a foreign South African mission where such applicant ordinarily resides or holds citizenship. Once the waiver from such requirement is granted only then may the asylum seeker or refugee proceed to submit an application for a temporary residence visa application in South Africa. These waivers must ordinarily be granted otherwise a ruling by the Constitutional Court will be violated.
A regulatory waiver application made in South Africa may take anywhere between 4 ` 7 months on average to be processed and adjudicated by the Department of Home Affairs. In order to apply for a waiver the applicant must be in possession of a valid refugee or immigration status.


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