Inside Home Affairs
Work permits choices for foreign companies was recently approached for immigration advice by a US based company who won a contract to demolish an industrial site in South Africa. The demolition would take approximately 17 weeks and the company was intending to send eight of their experts over for the duration of the project. I decided to write about this client experience because it is a common enquiry we receive these days. I will not delve into the eventual outcome of the process but I believe that discussing the options available to companies in similar situations will be informative. The US company had two options. For assignments shorter than 12 weeks, one can think of the sec 11 (2) permit. This permit allows the foreigner to work and is issued at the port of entry into South Africa. The foreigner needs to present a letter of approval issued by the Department of Home Affairs. In order to obtain the requisite approval letter, one needs to submit the flight details, passport copies and most importantly a request in writing by the local company explaining why they need the foreigner. The time
Home Affairs needs to issue such letters varies. In 2012 it took a few weeks but this has since improved to a time period of five to ten working days. In the beginning of 2013, we actually received a permit within 24 hours.
such a scenario the registration of an external company might be a solution. The Immigration Act also allows for an affiliation between the overseas and local company. Here the demolition contract could form the basis for the affiliation.
The conditions attached to the section 11 (2) permit are that it cannot be extended and the assignee needs to leave South Africa before the visa expires.
A practical solution of course can be to involve more employees on the project and limit their assignments to a maximum of 12 weeks and therefore apply for section 11(2) permits.
The alternative for the US company was a straight forward intra-company transfer work permit. This was preferable because the project duration exceeded the 12 week threshold and there was a chance that the project would take longer than the planned 17 weeks. This option offers more flexibility but is also more expensive if the company involves third party advisors. The preparation might take a little longer compared to the section 11(2) permit because more documents are required and processing times at most South African embassies might be longer than five working days. Thus for projects with very short lead times, this might cause unwanted delays. An additional point to mention is, as the name says, that the intracompany transfer work permit is designed for companies who wish to transfer employees to their South African branch. A lot of international engineering houses or service providers who get awarded a short term contract might not have a subsidiary yet or do not want to establish one for good reasons. In
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On a different note, it seems like lately I bring only good news about home affairs to our readers. We have certainly witnessed a certain attitude change particularly amongst high ranking officials who appear to be doing their best to deliver a quality service. They respond to emails within appropriate timeframes and give feedback to questions. The processing times at the central hub in Pretoria are much shorter than they were six months ago. Unfortunately the regional offices still take an awfully long time to capture submitted applications. It seems that the physical distance between the Minister of Home Affairs and her employees has a direct influence on their performance; the closer they are the better their performance.
Andreas Krensel is the owner and managing director of IBN Consulting in Cape Town (www.ibncapetown.com). He is a qualified German attorney with an LLM from UCT and has been assisting foreign investors in South Africa for the past ten years.