Illegal Immigration: South African Epidemic?

Tristan Moodley – Candidate Attorney


South Africa currently faces an illegal immigration issue of massive proportions.

The South African government, including the Department of Home Affairs are currently inundated with cases of illegal immigrants entering the borders of South Africa without proper documentation.

To combat this epidemic, the South African Government passed the Immigration Act 13 of 2002 (the “Immigration Act”) and which was promulgated on the 31st of May 2002.

The aim of this Act was to integrate a new system of immigration control in place to ensure, inter alia, the control of immigration of foreign nationals and reducing the pull factors of illegal immigration in South Africa.

Immigration may be divided into two main categories, namely documented immigration and undocumented immigration.

Documented and/or legal immigration refers to those individuals who have obtained the proper documentation to be legal in the country.

Undocumented and/or illegal immigration refers to those individuals who have not received the proper documentation and are illegal in the country.

Despite measures taken to curb the influx of illegal immigrants in South Africa, our national police force, along with Immigration Officers and metropolitan police departments still encounter difficulties in assisting the government to enforce the law regarding illegal immigration.

Section 1(1)(xviii) of the Immigration Act defines an illegal foreigner as a “foreigner who is in the Republic in contravention of this act and includes a prohibited person”.

In order to be legal in South Africa, foreign nationals need to have applied for proper documentation from the Department of Home Affairs, failing which, they will be deemed to be illegal in the Republic and stand the risk of getting arrested and/or deported.

There are various permits which a foreign national may apply for in order to be legally documented in South Africa.  However, the most common of these are as follows:

  • Temporary Residence Permit
  • Visitor’s Permit
  • Study Permit
  • Work Permit
  • Asylum-Seeker Permit

The causes of illegal immigration in South Africa varies between the foreigner’s homeland, based on those countries’ political, economic, and social issues.

In terms of the Immigration Act, if found guilty by a court of law, the offending party will be liable to a fine and/or imprisonment not exceeding three (3) months.  The illegal foreigner also stands the risk of being deported from the country.

To prevent an illegal foreigner from committing a criminal offence, Section 43 of the Immigration Act states that a foreigner needs to abide by the terms and conditions of their permit and to depart the Republic upon the expiry of their status.

If found guilty of the above offence, an accused illegal foreigner may apply in court for bail to secure his release from custody.  However, this is a short fix, seeing as the offender is still illegal in the country even upon release from the court.


It is incumbent upon foreign nationals to register with the Department of Home Affairs to obtain the proper documentation for the purpose of which they intend on entering South Africa, before entering the Republic.

By going through the proper channels, a foreign national minimizes his/her liability to be arrested and subsequently prosecuted.

This topic will be elaborated upon further in our live Facebook Live discussion.

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Kindly note this article is intended for general information purposes only and does not constitute legal advice. Should you need legal advice, please contact one of our legal practitioners.

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