Member Article

President Cyril Ramaphosa, in his address to the nation on Sunday, 15 March 2020, declared a national state of disaster and introduced a numberof measures to curb the spread of the new Coronavirus (COVID-19). As of 19 March 2020, South Africa has recorded 150 confirmed cases of COVID-19.

The extraordinary measures introduced include several immigration and border control measures, some of which were subsequently confirmed and elaborated upon by the Minister of Home Affairs during a press briefingof the inter-ministerial task team on the COVID-19 response plan.

Yesterday, 18 March 2020, the Department of Home Affairs issued a special directive which seeks to give effect to some of these temporary measures.This was followed by the publication of new regulations to govern land and sea ports.

These measures introduced include new protocols for:

Foreign travellers from high-risk countries

• Any travellers who have entered South Africa from high-risk countries since mid-February must present themselves for testing.
• A complete travel ban on disembarkation of foreigners from high-risk countries such as Italy, Iran, South Korea, Spain, Germany, France, United States and United Kingdom and China as of18 March 2020.
• The visa exemptions granted to nationals of high-risk countries in terms of section 10A(4)(a) of the Immigration Act, 2002 ("Immigration Act") are withdrawn and any foreign national high-risk country who proceeds to a port of entry without a valid port of entry visa will be refused entry into South Africa.
• Existing visas to residents of high-risk countries who have not yet entered South Africa are cancelled and revoked forthwith. Any port of entry visa that was issued to a citizen of China and Iran before or on 15 March 2020 for the purpose of visiting South Africa, in terms of section 10A(3)(c) of the Immigration Act, is cancelled with immediate effect and declared null and void. Any foreign national whose passport contains evidence that he or she has visited a high-risk country since 15 March 2020 will not be issued with a port of entry visa or a temporary residence visa and will not be allowed to enter South Africa.This does not apply to the visas of foreign nationals from high-risk countries who are already in South Africa and therefore do not pose a risk. The list of high-risk countries will change based on the risk rating of the World Health Organisation.
  
  

Foreign travellers from medium-risk countries

• The visa exemption granted in terms of section 10A(4)(a) of the Immigration Act, enjoyed by medium-risk nationals of Portugal, Hong Kong and Singapore, is also withdrawn and travellers from these countries must apply for visas at the SouthAfrican Mission where they reside until further notice.
• Visa applications must include a medical report attesting to the fact that the applicant has not tested positive for the COVID-19.
• Travellers from medium-risk countries will also be subjected to extra screening upon entry.
  
  

Foreign nationals already present in South Africa

• Any foreign national who is already in South Africa from a country that is affected by the COVID-19) outbreak or who needs to transit through an affected country in order to return, and whose temporary residence visa is due to expire or has already expired, will be allowed to re-apply for the same visa valid until 31 July 2020, provided they meet all the prescribed requirements. This applies even to foreigners on visas that are not renewable.
• Where such a foreigner is the holder of a temporary residence visa that expired since 1 December 2019 and up to 31 March 2020, they will be allowed to re-apply for such a visa without the need to first obtain a FORM 20 (authorisation for an illegal foreigner to remain in the country pending an application for status).
• Where an applicant is unable to meet one or more of the prescribed requirements for any temporary residence visa, he or she may apply to the minister in the prescribed manner to waive such requirement.
• No application for change of status or conditions will, however, be allowed in these circumstances.
  
  

South African citizens

• South African citizens and permanent residents are to refrain from all use of international air and sea travel.
• Returning South African citizens and permanent residents will be allowed to disembark at ports, but are subject to testing and self-isolation or quarantine upon return to South Africa.
• Crew from high-risk countries will be subject to medical screening and quarantined for up to 21 days.
  
  

The following general protocols have also been introduced:

• South Africa has 72 ports of entry. 35 of 53 land ports are to be shut down. Two of eight sea ports are to be closed. Only designated sea and air ports with the necessary screening facilities may embark and disembark passengers, and only in specific circumstances.
• No passenger or crew changes will be allowed at sea ports until further notice, save that South African citizens and permanent residents will be allowed to disembark and departing foreign nationals will be allowed to embark.
• There will be an increase of surveillance, screening and testing at international airports and tracking, tracing and monitoring systems are to be implemented.
• Biometric screening at airports will be replaced by a card system until further notice.
  
  

These new regulations will have far-reaching implications for employers and employees alike. Multinationals who rely on foreign nationals in the running of their businesses as either employees, secondees or in respect of the training of their employees, will need to carefully consider:

• Whether any recently granted visas have been revoked and whether any incoming foreign nationals are now precluded from entering the country and consider whether there are any damages occasioned by the cancellation, including in respect of accommodation, car rental and the like;
• Whether there are any additional medical tests required prior to application being made to the South African mission (in respect of medium-risk countries) and whether welcoming foreign nationals in the workplace, notwithstanding testing prior to application, places the workplace at risk of infection. Employers may want to introduce additional testing requirements and/or measures in place to ensure the least amount of risk, including self-quarantining prior to and post arrival;
• Whether any foreign nationals already in country may have travelled through an affected area since mid-February 2020;
• Whether any employment or secondment contracts require extension, including the extension of any health insurance benefits provided in country or abroad, given the ability to renew certain visas in country which would previously have been done abroad;
• Whether any in-country foreign nationals have a contractual right to home flights and how this ought to be managed. Employers will need to deal with their approach on a case-by-case basis, taking into account the contractual provisions, the employee’s personal circumstances and the impact on the business and workplace.
  
  

In addition to the above, employers should bear in mind the impact that extended separation from their family and friends may have on foreign national employees’ well-being, particularly where they come from a country that has been impacted by the virus. Situations may exist where foreign national employees’ families have contracted the virus or they have otherwise been impacted by the virus though job losses or similar economic and social consequences.

Lauren Salt, Executive Employment, [email protected], +27 84 509 6494

Zahida Ebrahim, Executive Immigration Dispute Resolution, [email protected], +27 83 645 8595

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.