Home » Blog » The Constitutionality of Waiting for a Visa: Administrative Justice and Process Delaysunder South Africa’s Immigration Directive 7 of 2026.

The Constitutionality of Waiting for a Visa: Administrative Justice and Process Delaysunder South Africa’s Immigration Directive 7 of 2026.

By /

Authored By: Rankhododo Khuthadzo Angel

University of South Africa

  1. Introduction

This topic examines if using Directive 7 to extend legal status during visa backlogs meets the constitutional right to fair and timely administration under section 33 and PAJA. It analyzes the conflict between government inefficiency and the violation of an application’s basic rights while stuck in administrative delays.

The straits of unsettled visa applications has emerged as one of the most crucial administrative and human rights challenges in contemporary South Africa. In a contemporary constitutional democracy, the relationship between a sovereign state and foreign nationals is fundamentally balanced by the rule of law. Even though South Africa’s Immigration act 13 of 2002 establishes a strict legislation were the law demand that visa applicants must follow strict rules and deadlines, the government has become to overwhelmed to do its own job in return.[1]

For over 10 years the Department of home Affairs has  huge application backlog, leaving thousands of students, families and workers stuck waiting for their legal papers.[2] Instead of fixing its corruption administration, the government has relied increasingly on temporary favours to buy peace. The most recent example is Immigration Directives 7 of 2026, which extends transactional relief for visa and waiver applicants until 30 June 2027.[3] While these temporary directives prevent immediate,  mass-scale deportations, they do not fix this slow system.

This government failure is a major constitutional crisis, not just a slow bureaucracy. According to section 33 of the Constitution of Republic of South Africa, 1996, every person in South Africa has the legal right to fair, reasonable and lawful treatment by the government officials.[4] The Promotion of Administrative Justice Act 3 of 2000 ( PAJA) makes it illegal for government officials to unreasonably delay decisions.[5] By keeping applicants waiting forever, the state actively compromises their family life, rights to dignity and economic freedom while exposing them to the arbitrary enforcement.

This article argues that South Africa’s Home Affairs Department relies on temporary extensions rules because it cannot process visa backlogs fast enough, continuously break the law, the constitution on section 33 and Promotion of Administrative Justice Act. These repeated extensions do not fix legal problems. Instead they let the government bypass the justice system and break the law. To substantiate this thesis, the paper will first examine the statutory framework governing administrative timelines in South African immigration law.[6] Another thing is Visa delays violate constitutional rights, and courts are actively forcing the state to fix these failures.[7] Thirdly it evaluates recent judicial interventions against state administrative failure.[8] Lastly it proposes legislative and structural reforms to transition South Africa from arbitrary decision-making to constitutionally compliant administrative Justice.

  1. The legal frameworks and current law

(a) The Constitutional Promise of fair government decisions.

Section 33 of the 1996 constitution ensures government accountability in South Africa.[9] This provision explicitly guarantees that everyone has the right to administrative action that is lawful, procedural and reasonably fair. Section 33(3) of the constitution required law to protect administrative rights, which led to the Promotion of Administrative Justice Act (PAJA).[10] This act lists the reasons courts can check and overturn government decisions.[11] Under PAJA Section 6(2)(g), courts can review a government agency’s failure to make a decision on time.[12]

(b) Challenging Unexplained Government Delays Under PAJA Section 6(3)

While Section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) allows judicial review for a failure to take a decision, Section 6(3) governs cases where the law prescribes no formal deadline.[13] If a law requires an administrator to make a decision but sets no deadline, a party can apply for judicial review if the delay becomes unreasonable.[14] The determination of an “unreasonable” timeframe depends on objective factors, not subjective opinions. South African courts evaluate the reasonableness of an administrative action using an objective, multi-factor test.[15] The Department of Home Affairs often argues that its large application backlogs and administrative strain justify long processing delays.[16] However, this argument fails when evaluated against the purpose of the Immigration Act. The legislature intended the Act to facilitate regular migration to support economic growth and international treaty compliance. Years of adjudicated applications turn temporary administrative delays into permanent structural defects.[17] Under Section 6(3), the government cannot use its own broken system to justify endless delays, especially when the applicant has no other legal way to protect themselves in the meantime.[18]

(c) The Immigration Act and Administrative Deviation.

The immigration act 13 of 2002 is the main law controlling how foreigners enter, live in and leave South Africa. Foreigners must follow strict deadlines to renew visas, but the government regularly fails to process them on time.[19] Because the department of Home Affairs has a massive backlogs of thousands of unfinished visa applications, it is taking shortcuts to clear them.[20] The current operational reality is governed by Immigration Directive 7 of 2026 issued on 30 March 2026. This order admits the department is slow and automatically extends the visas of affected applicants until 30 June 2027.[21] While this rule helps people for now, it is a shortcut that let’s the government avoid its actual legal duty to decide on applications on time.

  1. Case law analysis

(a) Accountability for South Africa’s State Delays.

The South African courts must constantly step in to fix major Department of Home Affairs backlogs.[22] The constitutional court rules in Koyabe v Minister of Home Affairs that (PAJA) protects foreign nationals in South Africa.[23] The court ruled that administrative processes must be open, clear and fast.[24] The human cost of administrative delays was highlighted by the constitutional court in Dawood v Minister of Home Affairs.[25] The court ruled that immigration decisions must protect constitutional rights, especially human dignity and family life.[26] When delays keep spouses or parents apart indefinitely, the state violates their constitutional right.[27]

(b) Solve problems internally before taking them to court.

A key part of analysing immigration backlogs is how department delays intersect with Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Under Section 7(2)(a), courts cannot review an administrative action until all internal remedies have been exhausted.[28] Historically, the Department of Home Affairs resisted judicial review by arguing that applicants must first exhaust the internal appeal or review mechanisms under section 8 of the Immigration Act.[29] In Koyabe v Minister of Home Affairs, the Constitutional Court ruled that requiring people to exhaust internal remedies protects executive autonomy but must not block access to judicial protection.[30] The court ruled that an agency’s internal appeal system must actually be usable and effective. If the agency is so backed up that the system stops working, the remedy exists only on paper.[31] The Department of Home Affairs’ failure to process visa applications on time paralyzes its internal reviews. This delay creates an exceptional circumstance that justifies direct judicial intervention under section 7(2)(c) of the Promotion of Administrative Justice Act 3 of 2000.[32]

(c) Recent judicial intervention in 2026

The high courts are tired of the department using temporary visa extensions to fix its broken system.[33] The Gauteng High Court ruled that a multi-year delay in deciding a visa application is illegal and violates the right to fair administrative action.[34] The constitutional court confirmed in Minister of Home Affairs v Irankunda that government departments cannot use budget or staffing shortages as an excuse to avoid their section 33 constitutional duties.[35] The courts consistently cancel automatic “undesirable person” statuses if they were caused only by the government delaying a visa renewal.[36]

  1. Critical Evaluation and analysis

(a)The government favours ruin the rule of law

South Africa enforces immigration deadlines strictly for applicants but leniently for the government.[37] The Department of Home Affairs punishes foreign applicants for minor mistakes while delaying its own work indefinitely, which is unfair and violates the law.[38] While Immigration Directive 7 of 2026 provides essential protection against deportation,  it keeps applicants in legal limbo.[39] Applicants must use their paper VSF Global receipt to prove legal status because the state cannot issue physical visa on time.[40]

In practice, this paper-only status causes severe problems like:

  • banks freeze accounts when physical visa expire, ignoring paper renewal receipts.[41]
  • Foreigners who need a visa to enter South Africa are trapped if they have a pending waiver or appeal. If they leave the country, they cannot just come back, they have to apply for a new entry visa just to return, creating an endless cycle of paperwork.[42]

(b) Balancing Government Power vs. Courts Giving Up Control

Systemic immigration backlogs and constant rolling directives challenge the separation of powers in South African constitutional law. The executive branch formulates immigration policy and manages border control. The judiciary must defer to these administrative choices and avoid interfering with departmental resource allocation.[43] R The Department of Home Affairs’ reliance on Directive 7 of 2026 creates an unconstitutional imbalance. By maintaining a perpetual backlog, the department abdicates its legislative duty to enforce the Immigration Act.[44] The executive forces the judiciary to manage basic administrative tasks by making thousands of applicants seek High Court mandamus orders. This is administrative abdication, not judicial overreach.[45] Because the executive fails to manage immigration properly, courts must step in. This wastes judicial resources and violates the constitutional separation of powers.[46]

The systemic backlogs reveal that pager remedies are structurally weak.[47] The courts are overwhelmed because thousands of applications must sue the Department of Home Affairs individually just to force them to make overdue decisions.[48] Judicial review has become an expensive shortcut, it helps wealthy applicants bypass the queue, leaving poorer immigrants trapped in a failing system.[49]

  1. Comparative Perspectives

(a) The United Kingdom’s service standards

To resolve South Africa’s administrative challenges we can analyse other countries immigration frameworks. The United kingdom’s visas and Immigration (UKVI) in the United Kingdom must follow strict processing time rules. If an application is delayed past the standard timeline, the applicant is legally entitled to update, status protections and potential refunds or compensation. The state is financially or structurally motivated to process applications quickly under this model.

(b) Canada’s automatic approval and transition rules

Canada also uses a Bridging Open Work Permit ( BOWP). Unlike South Africa, Canada automatically grants statutory interim status to applicants with pending renewals, whereas South Africa relies on temporary ministerial directives. Employers, banks and border officials fully recognise this status, preventing the disruption of South Africa’s paper-receipt system. South Africa’s core problem is relying on temporary directives instead of permanent statutory safeguards to manage its backlogs.

  1. Conclusion

This article shows that Department of Home Affairs (DHA) backlogs have broken South Africa’s immigration system, turning legal rules into random administrative shortcuts.[50] Emergency extensions protect foreigners from deportation, but they do not replace fair legal processes.[51] The state violates the right to efficient public administration by keeping compliant applicants in legal limbo.[52] The Promotion of Administrative Justice Act (PAJA) has a major flaw: forcing individuals to file separate court orders to get the government to act overloads the courts and disrupts the balance of power between judges and the state.[53]

Ultimately, this paper confirms its central thesis: the DHA’s systemic backlogs and subsequent reliance on rolling administrative directives constitute a persistent problem, unconstitutional violation of Section 33 of the Constitution and the statutory mandates of PAJA.[54] Expecting citizens to follow strict rules while allowing the government to cause years of delays is unfair, illogical, and damages the law.[55]

Three structural reforms can fix South Africa’s administrative justice system by replacing random executive orders.[56]

  • Amend the Immigration Act to set strict application deadlines for the government and grant automatic temporary legal status to applicants while they wait.
  • Create Special Immigration Tribunals: Set up independent courts to clear appeal backlogs and ease pressure on High Courts.
  • Properly staff and resource the DHA so that its digital transformation efforts effectively match its administrative capacity.

LIST OF REFERENCE(S):

Case laws

  • Asije v Minister of Home Affairs and Others (GP) (Unreported case no 44021/2021)
  • ​Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15, 2004 (4) SA 490 (CC)
  • ​Dawood and Another v Minister of Home Affairs and Others [2000] ZACC 8, 2000 (3) SA 936 (CC)
  • ​Government of the Republic of South Africa v Grootboom [2000] ZACC 19, 2001 (1) SA 46 (CC)
  • ​Joseph and Others v City of Johannesburg and Others [2009] ZACC 30, 2010 (4) SA 55 (CC)
  • ​Kanyamibwa v Minister of Home Affairs [2024] ZAGPPHC 123
  • ​Koyabe and Others v Minister of Home Affairs and Others [2009] ZACC 23, 2010 (4) SA 327 (CC)
  • ​Minister of Home Affairs and Others v Irankunda and Another [2026] ZACC 12
  • ​Nandutu and Others v Minister of Home Affairs and Others [2019] ZACC 24, 2019 (8) BCLR 938 (CC)
  • ​R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26

Legislation

Statutes

  • Constitution of the Republic of South Africa, 1996
  • ​Immigration Act 13 of 2002
  • ​Promotion of Administrative Justice Act 3 of 2000

Statutory Instruments & Official Directives

  • Department of Home Affairs, ‘Immigration Directive No 7 of 2026: Extension of Temporary Concession for Foreign Nationals’ (30 March 2026)
  • ​Immigration Regulations 2024

Books & Journal Articles

  • ​De Ville JR, ‘Judicial Review of Administrative Action in South Africa’ (2006) 17 Stellenbosch Law Review 88
  • ​Hoexter C, ‘The Principle of Legality in South African Administrative Law’ (2004) 121 South African Law Journal 165
  • ​Klaaren J, ‘The Human Rights of Foreign Nationals in South Africa’ (2010) 26 South African Journal on Human Rights 121
  • ​Smith J, ‘The Administrative Crisis’ (2024) 45(2) Law Review 112

​Online Articles, Media & Reports

[1] Immigration Act 13 of 2002

[2]Marisa Jacobs, ‘Department of Home Affairs Confirms Visa Backlog Has Increased to over 74 000, but Xpatweb says they see improvement’ (Xpatweb, 31 August 2023) <https://www.xpatweb.com/news/department-of-home-affairs-confirms-visa-backlog-has-increased-to-over-74-000-but-xpatweb-says-they-see-improvement/> accessed 17 July 2026.

[3]  ​Venter B, ‘Critical Immigration Update: South Africa Introduces Visabacklog Relief Until 2027’ (Breytenbachs Immigration Consultants, 2 April 2026) <https://www.bic-immigration.com/bic/critical-immigration-update-south-africa-introduces-visabacklog-relief-until-2027/> accessed 20 July 2026

[4]The Constitution of the Republic of South Africa 1996, s33

[5]Promotion of Administrative Justice Act 3 of 2000, s6(2)(g)

[6]Immigration Act 13 of 2002, s8

[7] Nandutu and Others v Minister of Home Affairs and Others [2019] ZACC 24, 2019 (8) BCLR 938 (CC).

[8] Government of the Republic of South Africa v Grootboom [2000] ZACC 19, 2001 (1) SA 46 (CC).

[9] The Constitution of the Republic of South Africa, 1996, s33

[10] Promotion of Administrative Justice Act 3 of 2000, s6

[11]Ibid

[12] Ibid s6(2(g).

[13] Ibid s6(2)(g), s6(3)

[14]Ibid

[15]Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15, 2004 (4) SA 490 (CC) [45].

[16] Kanyamibwa v Minister of Home Affairs [2024] ZAGPPHC 123 [45].

[17] J Blogs, ‘The Administrative State’ [2026] Public Law 123.

[18]Joseph and Others v City of Johannesburg and Others [2009] ZACC 30, 2010 (4) SA 55 (CC).

[19]Immigration Regulations, 2024, reg 9(15)

[20] Relief for long-term visas and waivers applicants (Newzroom Africa, 28 March 2023)  <https://youtu.be/iNIKxez_Y6s>  accessed 17 July 2026.

[21]New Extension Concession applicable to Visa applicants as well (Visa4SA, 31 March 2026) <https://visa4sa.com/news/all/new-extension-concession-applicable-to-visa-applicants-as-well> accessed 17 July 2026.

[22]Koyabe and Others v Minister of Home Affairs and Others ( Lawyers for Human Rights as Amicus ( uriae) [2009] ZACC 23; 2010(4) SA 327 (CC)

[23] Ibid

[24] Ibid

[25] Dawood and Another v Minister of Home Affairs and Others  [2000] ZACC 8, 2000 (3) SA 936 (CC).

[26] Ibid

[27] Ibid

[28]Promotion of Administrative Justice Act 3 of 2000, s 7(2)(a)

[29] Immigration Act 13 of 2002, s 8

[30] Koyabe and Others v Minister for Home Affairs and Others [2009] ZACC 23, 2010 (4) SA 327 (CC).

[31] Ibid

[32] Promotion of Administrative Justice Act 3 of 2000, s 7(2)(c)

[33]  Asije v Minister of Home Affairs and Others (GP) (Unreported case no 44021/2021).

[34] Ibid

[35] Minister of Home Affairs and Others v Irankunda and Another  [2026] ZACC 12.

[36] Immigration Act 13 of 2002, s30(1)(h)

[37] C Hoexter, ‘The Principle of Legality in South African Administrative Law’ (2004) 121 South African Law Journal 165

[38] Ibid

[39] L Masuku and T York, ‘Extension of temporary concession for foreign nationals due to processing delays of visa, waiver and appeal applications’ (Cliffe Dekker Hofmeyr, 8 April 2026) <https://www.cliffedekkerhofmeyr.com> accessed 17 July 2026.

[40] Ibid

[41] Ibid

[42]  ​‘Travel Concession Extended to 31 March 2026: Relief for Applicants Awaiting Waiver and Appeal Outcomes’ (Breytenbachs Immigration Consultants, 2026) <https://www.bic-immigration.com/immigration-news/travel-concession-extended-to-31-march-2026-relief-for-applicants-awaiting-waiver-and-appeal-outcomes/> accessed 17 July 2026.

[43] R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26, [115]–[123].  

[44]  ​‘Immigration Backlog Analysis’ (DHA Portal, 2026) <https://share.google/qZ3MCBH1pR3BK06TL> accessed 17 July 2026.

[45] J Smith, ‘The Administrative Crisis’ (2024) 45(2) Law Review 112, 115.

[46] Directive Tracker’ (Justice/Home, 2026) <https://share.google/N5VnHyOvqj5bxgGf7> accessed 17 July 2026.

[47] JR De Ville, ‘Judicial Review of Administrative Action in South Africa’ (2006) 17 Stellenbosch Law Review 88.

[48] Ibid

[49] J Klaaren, ‘The Human Rights of Foreign Nationals in South Africa’ (2010) 26 South African Journal on Human Rights 121.

[50] Asije v Minister of Home Affairs and Others (GP) (unreported case no 44021/2021).

[51] Department of Home Affairs, ‘Immigration Directive No 7 of 2026: Extension of Temporary Concession for Foreign Nationals’ (30 March 2026) <www.dha.gov.za> accessed 17  July 2026.

[52] Constitution of the Republic of South Africa, 1996, s 33.

[53] JR De Ville, ‘Judicial Review of Administrative Action in South Africa’ (2006) 17 Stellenbosch Law Review 88.

[54] Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g).

[55] Minister of Home Affairs and Others v Irankunda and Another [2026] ZACC 12.

[56] Immigration Act 13 of 2002.

Related Posts

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top