When a property purchaser is a foreigner
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.
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 he or she is 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 from assisting a foreigner who is in the country illegally, whether by letting or selling or in any manner making immovable property available to him or her.
From a conveyancing point of view, it is notable that ignorance is no defence in any criminal proceedings arising out of a transgression of this provision. A seller, agent, or conveyancer must always establish whether the foreigner is legally in the country when the agreement of sale is concluded and when dealing with him or her, failing which criminal liability may follow.
Contact our professionals on 041 363 6044 or email@example.com for sound legal advice.