If your status in South Africa rested on a section 11(6) spousal visitor's visa, that relationship has ended, and you are the parent of a child who is a South African citizen or permanent resident, the number that matters is three. You have three months from the end of the relationship to lodge an application for a new visa. Do that and your existing visa is deemed to remain valid while the new application is decided. Lodge later and you can still apply, but you must then show good cause for the delay. The protection comes from a Constitutional Court order, not departmental discretion, so it is worth knowing exactly what the order says.
What the Court decided
The case is Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others (CCT 176/22) [2023] ZACC 40, decided on 4 December 2023. Zondo CJ wrote the judgment and the rest of the Court concurred. It is reported at 2024 (2) SA 591 (CC).
Before the judgment, section 11(6) of the Immigration Act 13 of 2002 allowed a visitor's visa for the spouse of a citizen or permanent resident, and the holder could on application be authorised to work. The catch sat in section 11(6)(a): the visa was valid only while the good faith spousal relationship existed, so when the marriage or partnership ended the visa fell away with it. Section 18(2) barred the holder of a relative's visa from conducting work at all, with no power to authorise it. Section 10(6)(b) stopped holders of a visitor's or medical treatment visa from changing status inside the Republic except in exceptional circumstances as prescribed, and regulation 9(9)(a) of the Immigration Regulations, 2014 then listed only two, neither reaching a parent of a South African child.
The Court declared sections 10(6), 11(6) and 18(2) of the Act, and regulation 9(9)(a) of the Regulations, inconsistent with the Constitution and invalid to the extent that they did three things to a parent of a citizen or permanent resident child who is fulfilling, or intends to fulfil, responsibilities to that child: forced a section 11(6) visa holder to cease working or leave the Republic once the spousal relationship ended; required the parent to leave in order to apply for a new visa; and denied work to a parent otherwise eligible for a relative's visa under section 18(1).
The three-month clock
The Court did not strike the provisions down; it rewrote them for the period of suspension. Section 11(6)(a) is deemed to read so that where the good faith spousal relationship has terminated and the holder is a parent of a citizen or permanent resident child, and is at the time fulfilling or demonstrates an intention to fulfil parental responsibilities to that child, the visa is deemed valid pending the outcome of an application for a new visa. That application must be made within three months of the end of the relationship, with a further proviso for a later application where good cause is shown for the delay.
Two things follow. The clock runs from the end of the good faith relationship, not from the date of a divorce order, so evidence of when it actually ended matters. And "deemed valid" is a status, not a document: your visa will still show a relationship that has ended, so the lodged application and its receipt become the proof you rely on at a counter or a port of entry.
Applying from inside South Africa
The Minister amended the Regulations on 20 May 2024 by Government Notice R4847 in Government Gazette 50675. Regulation 9(9)(a) now carries two further categories of exceptional circumstance under section 10(6)(b): the spouse or child of a South African citizen or permanent resident, and the parent of a citizen or permanent resident child. A parent in this position may therefore apply for a change of status without first leaving the Republic.
A change of status is applied for on Form 9 in Annexure A to the Regulations, issued as DHA-1740, and regulation 9(5)(a) requires it to be submitted no less than 60 days before the current visa expires. The visa application itself is made on Form 8, issued as DHA-1738, with a medical report for each applicant; the separate radiological report requirement was deleted by the same 2024 amendment. Where the relationship ends with under 60 days left on the visa, those rules pull against each other. No published departmental guidance reconciles them, so set out the timing and the basis of the application in writing when you lodge.
Work rights are where this goes wrong
Section 18(2) is deemed to read as allowing the holder of a relative's visa to work in the Republic for the full duration of the visa where the South African citizen or permanent resident is a child, the applicant is that child's parent, and the applicant is currently fulfilling or demonstrates an intention to fulfil responsibilities to that child.
The right exists. The endorsement printed on the visa is a separate administrative act. Writing on the second anniversary of the judgment, the chief executive of the firm that acted for the applicants recorded that parents in this category have been issued standard relative's visas without the work endorsement and have then had to pursue rectification. So ask for the endorsement expressly in the application, refer to the words read in to section 18(2), and keep a copy of everything you lodged. A visa issued without the endorsement is an administrative problem to raise straight away, not an invitation to start working and hope.
Who is covered, and who is not
The order is narrower than it is often described. It covers a parent of a child who is a South African citizen or permanent resident. It does not reach a sibling, an adult child, or a spouse holding a relative's visa in that capacity, and the Chief Justice declined to extend it to guardians and other caregivers, whose cases the affidavits had not covered adequately.
"Fulfilling parental responsibilities" tracks section 18 of the Children's Act 38 of 2005, which lists caring for the child, maintaining contact with the child, acting as guardian and contributing to maintenance. Evidence of those is what an adjudicator is looking for.
What is settled, and what is still open
Settled: the declarations of invalidity, the words read in to sections 11(6)(a) and 18(2) and to regulation 9(9)(a), and the declaration that the visas of four named applicants remained valid until their applications were determined.
Still open: the shape of the framework now. The declarations were suspended for 24 months from 4 December 2023, giving Parliament and the Minister until 4 December 2025 to correct the defects. The Minister acted on regulation 9(9)(a) in May 2024. Parliament has not amended sections 10(6), 11(6) or 18(2); the immigration amendment it passed in December 2025, which the President signed in May 2026, amends section 34 on the arrest and detention of illegal foreigners and does not touch these provisions. The order provides that the reading-in becomes final should Parliament fail to correct the Act and the Minister fail to correct the Regulations. Practitioners, including the firm that ran the case, have written that it has become final. But the order ties the two failures together, the Minister did act, and no reported ruling settles the point, so treat the precise status as a live question. Applications continue to be lodged on the strength of the read-in. Practitioner commentary also describes uneven awareness of the route among frontline officials, another reason to lodge a self-explanatory application rather than a minimal one.
Documents to assemble
- the child's unabridged birth certificate, and paternity test results where necessary, as proof of kinship under regulation 17(1)(b);
- the child's proof of South African citizenship or permanent residence;
- a police clearance certificate, required by regulation 17(1)(a);
- a medical report for each applicant, required by regulation 9(1)(c);
- Form 8 (DHA-1738), and Form 9 (DHA-1740) where a change of status is involved;
- current and previous visas, including the endorsement history;
- evidence of when the relationship ended: a divorce order, a settlement agreement, or an affidavit with supporting material;
- evidence of parental responsibilities: a parenting plan or court order, school and medical records, maintenance payments, proof of shared residence or regular contact;
- proof of residential address.
One point is frequently missed. Regulation 17(2) requires financial assurance, per person and per month, at an amount the Minister determines by notice in the Gazette, proven by a current salary advice or a certified bank statement not older than three months. That amount was set at R8,500 by Government Notice 456 in Government Gazette 37716 of 3 June 2014. The proviso to the same subregulation states that no financial assurance is required where the South African citizen or permanent resident is a dependent child. Under regulation 17(3) a relative's visa may be issued for a maximum of two years at a time.
What to do next
- Date the end of the relationship, count three months forward, and write the deadline down.
- Secure the child's citizenship or residence proof first, because the rest of the pack is built on it.
- Decide the route before lodging: a relative's visa with a work endorsement, or another category you qualify for in your own right.
- Request the work endorsement expressly, with reasons, in the application itself.
- Keep every VFS Global receipt and tracking reference; those are what evidence a pending application.
- Look further ahead. Permanent residence as the relative of a citizen or permanent resident within the first step of kinship, under section 27(g), is a separate and discretionary route. It sits outside the Rayment protection.
The date the relationship ended, the child's status and the current visa all change the answer, so the route is worth checking against your own record before anything is lodged. The Legalyze Eligibility Check is free and produces an indicative route shortlist. Spousal & Life Partner Visas covers route and endorsement screening, relationship evidence and change-of-status issue spotting. The Guided Application is from R5,500 where you want the pack prepared and reviewed with you; the DIY Application Kit is from R1,500 if you intend to file yourself; and Full-Service Coordination, from R8,500, adds a dedicated coordinator and a referral pathway where reserved legal work arises. Citizenship & Status Support is the starting point where the child's own citizenship records are unclear. Legalyze provides administrative support rather than legal representation, and reserved legal work is referred to an admitted practitioner.
General queries about a pending application can be put to the Home Affairs Contact Centre on 0800 601 190 or at hacc@dha.gov.za.
This is general information about the law as verified at the date of review, not advice on any individual case.