The short answer
It will be difficult. as they may not qualify for other visas in the Immigration Act.
The whole question
We are trying to find a way for our Zimbabwean domestic worker, Elizabeth*, and her 6-year-old daughter, Maria*, to stay in South Africa when the ZEP grace period ends.
Maria has been staying with our family friends because Elizabeth has serious health issues that sometimes prevent her from taking care of Maria. We have gotten Maria into a good government school, and we sponsor her fees. Even though Maria was born in South Africa, she has a Zimbabwean birth certificate. How can we stop her from being deported? And can we stop her mother from being deported?
*Not their real names.
The long answer
The government has said that ZEP holders have to find alternate means to stay in South Africa legally by 31 December 2022, and can continue to work, study and use banks, provided they have a Visa Facilitation Services Global (VFS) receipt to show that they have applied for an alternate visa. Before 31 December 2022, ZEP holders can travel freely in and out of South Africa, but after that, they will have to have a visa to travel.
The situation is very bleak for Zimbabweans who are labourers, construction workers, e-hailing drivers, gardeners and domestic workers, because they will not qualify for the other visas in the Immigration Act. These visas are permanent residence, study visa, critical skills visa and general work visa.
The general work visa is issued for five years and is the most difficult visa to obtain because an employer would have to prove that they could not fill the position with a South African citizen or permanent resident.
Kaajal Ramjathan-Keogh, a South African lawyer and the Director of International Commission of Jurists Africa Regional Programme, said in a Daily Vox article that according to the conditions of the ZEP permit, it is not possible for Zimbabweans to apply for permanent residence irrespective of how long they have stayed in South Africa. However, she said, that as a group they could file a legal challenge to this condition in court.
She added that so many Zimbabweans had built their lives here, and the conditions in Zimbabwe that caused them to come to South Africa had not changed. South Africa had failed in its diplomatic attempts to persuade the Zimbabwean government to promote human rights, democracy and the rule of law, and that it was an unconscionable act for the South African Cabinet to have passed this legislation, which was seemingly aimed at addressing the ANC’s poor local election results (as immigration was a key issue for many political parties), against a vulnerable and politically powerless people, she says.
In South Africa, a child takes the citizenship of its parents and the fact of being born in South Africa does not confer any rights of residence or citizenship to parents or children.
The fact that Elizabeth's daughter, Maria, was born here does not automatically entitle her to a South African birth certificate unless one of her parents was a South African citizen or permanent residence holder, or she is adopted by a South African citizen. If her father was South African, she would automatically be a South African citizen, but if he was not, she would be able to apply for South African citizenship when she reached 18 years of age and could prove (a) that her birth was registered, and (b) that she had spent her whole life in South Africa. This is according to the 2020 Constitutional Court judgement in Ali vs Minister of Home Affairs.
James Chapman, Head of Advocacy and Legal Advisor at the Scalabrini Centre in Cape Town, which has been inundated with requests for help from Zimbabweans, says that families would be separated. “There would be children accessing school and remaining in the country, but parents no longer able to stay because the ZEP is no longer in place.”
Lawyers for Human Rights have said that one of the biggest concerns was that children born and raised in South Africa could get deported with their parents even though they go to school here.
Kaajal Ramjathan-Keogh says that a birth certificate for a child born in South Africa to Zimbabwean parents should be sufficient for children to enrol at school, and proof of application for another permit should suffice for children to continue attending school, but at some point, a residence permit would be required.
If the people with whom Maria is living are South African and are willing to adopt her, which would make her legally their daughter, she would become a South African citizen.
But the fact of her becoming a South African citizen would not affect Elizabeth's status, except that she could apply for a relative’s visa from Home Affairs. A relative’s visa is generally granted for a minimum of two years, which can be extended, and she would need to present the following when applying:
Proof of a valid temporary residence relative visa by presenting your passport or proof of application thereof. You must also provide proof of kinship by means of producing an original birth certificate;
The South African citizen or permanent resident must also undertake to support you financially, should the need for doing so arise. But when an application for a relative visa is based on a dependent child, the child is not required to supply financial assurance for his or her parent.
All applications require the following to be submitted along with two fees that must be paid in addition to your immigration company’s service charges:
Department of Home Affairs (DHA) application fee (R1,520) and VHS service fees (R1,350);
The applicant’s unabridged birth certificate or a certified copy thereof;
A completed DHA application form;
Biometrics of the applicant, which will be taken at the place of submission;
Where applicable, a yellow fever vaccination certificate;
A police clearance certificate;
Radiological report where the applicant is over the age of 12;
Two passport photographs;
Proof of financial support showing the required R8,500 per month, per person;
Proof of South African citizen/permanent residence of the relative by means of an identity document or passport;
Proof of the first kinship to the South African citizen/permanent resident.
There is an estimated processing time of 8–10 months.
If the people with whom Maria lives are South African and are willing to adopt her, and Elizabeth agrees, this is the adoption procedure:
The first step is that a notice must be served by the sheriff of the Children’s Court to each parent or guardian to ask for their consent to the adoption;
A social worker must hold an interview with the prospective adoptive parents and compile a report on whether the child can be adopted; if the adoption would be in the child’s best interests; medical information about the child and the suitability of the prospective parents;
The adoptive parents must apply to the Children’s Court to adopt the child. This application must be accompanied by the report of the social worker, a letter from the provincial head of Social Development recommending the adoption of the child, and the necessary consent forms, where applicable;
The Children’s Court has to take into consideration the community, religious and cultural background of the child, the child’s parents and the adoptive parents, and if the adoption will be in the best interests of the child before granting permission;
There may be certain fees, for example, professional fees payable to the organisation that assisted in the adoption;
If an adoption order is granted by the court, it must be taken to Home Affairs, together with the child’s birth certificate, to record the adoption and any change in surname.
You may wish to consult with one of the following organisations as to the best way forward:
Lawyers for Human Rights;
Their general email is email@example.com. They have four offices:
Johannesburg: 078 315 1269
Durban: 078 301 0531
Musina: 076 766 7782
Cape Town: 021 424 8561
Scalabrini Centre (Cape Town)
Tel: 021 465 6433
Legal Resources Centre
Tel - Cape Town: 021 481 3000
Tel - Johannesburg: 011 836 9831
Wishing you the best,
Answered on May 10, 2022, 9:33 a.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.