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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 for sound legal advice.

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This article is not intended to constitute legal advice and is produced for information purposes only and to provide a general understanding of the legal position relating to the topic. It is recommended that advice relating to the specific circumstances of your situation be sought from our attorneys before acting upon the content of this article. This article was written at a particular point in time and accordingly may not always reflect the most recent legal developments, if any, applicable to the relevant topic. Kaplan Blumberg and its partners and/or employees, are not responsible for any consequences which may follow upon any decision taken to act upon the information provided in this article.

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