Our Immigration Act 23 of 2002 prescribes the rules for dealing with foreigners, their residence here, their departure from the country, and related matters. A foreigner, for purposes of the Act, is someone who is not a South African citizen.
Nevertheless, foreigners may purchase and own South African immovable property. However, ownership of land here does not automatically allow such foreigner entry into South Africa; the foreign owner must also comply with our visa requirements.
Therefore, the fact that a foreigner purchases property in South Africa whilst outside of the country does not, in principle, pose any challenge to the transaction. However, as soon as the foreigner is in South Africa and enters into the transaction whilst here, it becomes necessary first to establish whether or not they are here legally. Usually, the production of a valid visa, work or residence permit will address this requirement.
If the person is in South Africa illegally without a visa or permit, it is illegal for that foreigner to purchase land here. In fact, section 42 of the Act prohibits anyone including a property or conveyancing attorney from assisting a foreigner who is in the country illegally, whether by letting or selling or in any manner making the immovable property available to them.
From a conveyancing point of view, it should be noted that ignorance is no defence in any criminal proceedings arising out of a transgression of this provision. A seller, agent or conveyancer or property lawyer must always establish whether the foreigner is legally in the country when the agreement of sale is concluded and when dealing with them, failing which criminal liability may follow.
Contact your STBB conveyancer at firstname.lastname@example.org for assistance with all property-related transactions.