The sixty-day rule and its waiver: when procedure decides who may stay

For most of the past decade the sixty-day rule was a line in the Immigration Regulations that practitioners knew about and officials seldom enforced strictly. In the past two years it became one of the most consequential rules in South African immigration practice. Applications were refused, in large numbers, not because the applicant failed to qualify but because the application had been lodged too close to the expiry of the existing visa. On 2 October 2026 the Minister of Home Affairs waived the rule by directive. This commentary asks what the rule was, why its strict enforcement was so damaging, and whether a waiver is enough.

The rule

The Immigration Regulations, 2014 require in-country applications to be submitted well ahead of expiry. Regulation 9(8)(c) requires an application to renew or extend a visa to be submitted no less than sixty days before the existing visa expires. Regulation 9(5)(a) imposes the same timing on applications to change status or conditions.¹

The history matters. The previous regulations set a thirty-day period and allowed the Director-General to accept a late application, within the permit's validity, where good cause was shown. The 2014 Regulations doubled the period and dropped the good-cause proviso.² For years, practice softened the text: late filers explained the delay and their applications were usually considered on the merits. The wording never changed. What changed was how strictly it was applied.

From procedural rule to guillotine

From around 2025 practitioners reported a sharp change. Applications lodged inside the sixty-day window were refused with standard wording that the application had not been submitted no less than sixty days before expiry, and nothing more.³ One commentator links the shift to output targets set after the current Minister took office in 2024. The applications were reportedly still accepted, and fees collected for them. Some were refused on timing alone more than a year later, and appeals reportedly took around two years to resolve.⁴

A rule about when to file had become a rule about who may stay.

The consequences went far beyond inconvenience. A person refused on timing alone, whose visa then lapsed while an appeal was pending, could find themselves without status through no failure of substance. The standard advice was to leave South Africa and apply again from abroad. For a spouse, a worker or a parent of South African children, that advice was costly and disruptive. Practitioners reported a significant rise in refusals based only on timing, and a growing appeals backlog; no official figure has been published.⁵

The constitutional problem

The difficulty with mechanical enforcement was not that the regulation exists. A state is entitled to require timely applications, and early filing helps the Department manage its workload. The difficulty was the way the rule was applied.

Section 33 of the Constitution, given effect by the Promotion of Administrative Justice Act, requires administrative action to be lawful, reasonable and procedurally fair. A refusal that ignores the merits entirely, issued long after the fee was paid and the application accepted, is hard to defend as reasonable. The Constitutional Court has already been critical of rigid procedural requirements that prevent family members from regularising their status in South Africa, in Nandutu and Others v Minister of Home Affairs (2019) and in Rayment and Others v Minister of Home Affairs [2023] ZACC 40.⁶ Neither case concerned the sixty-day rule directly, but both point the same way. When a procedural rule separates families or ends careers regardless of the merits, it must be justified in proportion to the harm it causes. Timing alone rarely meets that standard.

The waiver: Immigration Directive 13 of 2026

Immigration Directive 13 of 2026 is dated 2 October 2026 and signed by the Minister, Dr Leon Schreiber. It relies on section 31(2)(c) of the Immigration Act, which allows the Minister to waive prescribed requirements for good cause. The reason given is the unintended consequences of applying regulations 9(8)(c) and 9(5)(a).⁷

The directive waives the sixty-day requirement for three groups: pending applications to extend a visa or change status or conditions; pending appeals where the only reason for refusal was the timing; and all future applications. It imposes one important condition. The application must be submitted while the existing visa is still valid. Otherwise section 32(1) of the Act, which deals with illegal foreigners, applies.⁸ The Department has indicated that appeal decisions based only on timing will be overturned, after which affected family members' applications can be resolved.⁹

What the waiver does not do

The directive is welcome. It is also narrower and more fragile than it first appears.

It is a waiver, not an amendment. Regulations 9(8)(c) and 9(5)(a) remain in force. A ministerial waiver under section 31(2)(c) can be withdrawn as easily as it was given, and the directive sets no end date. At least one practitioner expects it to be temporary.¹⁰ Lasting certainty requires the regulation itself to be amended. There is a further question: section 31(2)(c) waivers are framed as being granted on application, so a blanket waiver by directive rests on a reading of the section that could be contested.

It does not reach everyone affected. People who were refused on timing alone and did not appeal, and appeals already decided against the applicant, are not clearly covered. Many of those people have already left the country or lost their status. For them, the waiver came too late.

It does not cure an overstay. Anyone whose visa has already expired gains nothing from the directive, and every other requirement still applies. The waiver changes when you may file. It does not lower the standard for what you must prove.

It does not explain itself. The directive refers to unintended consequences but does not explain why the rule was enforced so strictly, or how many people were affected. One commentator has called it too little, too late.¹¹ It is fair to ask Parliament's Portfolio Committee to require the Department to count the affected appeals and report on them.

What applicants and employers should do now

• File while the visa is valid. This is now the only timing condition, and it is absolute. An application lodged a day after expiry is outside the directive.
• Still file early. The waiver removes the penalty for filing late, not the reasons to file early. Processing times remain long, and the waiver may not last.
• Check any timing-only refusal. If an appeal is pending, confirm it is being dealt with under the directive. If no appeal was lodged, take advice on whether a fresh application is the better route.
• Keep the evidence of filing. The receipt showing the date of submission is now the key document if questions arise later.

Conclusion

The sixty-day rule is a case study in how administrative practice can change the meaning of a regulation without any change to its words. For years the rule was applied with flexibility. Then it was applied strictly and mechanically, with serious consequences for families, workers and employers. The Minister's directive restores reasonableness for now. The lasting lesson is that procedural rules in immigration law are never only procedural. When they decide whether someone may remain with their family or keep their job, they must be applied with the same attention to fairness as the substantive rules. The proper fix is to amend regulation 9 and reinstate a good-cause discretion that does not depend on the goodwill of the day.