Key Note: South Africa’s Immigration Act requires life partners applying for permanent residence under section 26(b) to prove that their genuine relationship has existed for at least five years. However, the legislation does not expressly require the notarial agreement itself to have been signed five years earlier. A properly dated agreement signed today can attest to an earlier relationship, supported by evidence such as children’s unabridged birth certificates, shared finances and proof of cohabitation. Rejecting applications solely because the notarial agreement was concluded recently appears to impose a documentary requirement not stated in the Act or Immigration Regulations.
Home Affairs Wants a Document From the Past to Prove a Family That Clearly Exists Today
South African families are being placed in an impossible position by the Department of Home Affairs.
Foreign nationals who have lived in permanent life partnerships with South African citizens or permanent residents for more than five years may qualify for permanent residence under section 26(b) of the Immigration Act.
The legislation recognises these relationships as spousal relationships. Applicants must prove that the partnership has existed for at least five years and that it remains genuine and exclusive.
That sounds reasonable. The problem lies in how Home Affairs is applying the requirement.
New World Immigration has encountered applications rejected because the couple’s notarial agreement was not concluded or dated at the beginning of the five-year period. This has occurred even where applicants presented substantial historical evidence showing that the relationship had existed for far longer, including unabridged birth certificates recording children born to the couple many years earlier.
In practical terms, Home Affairs appears to be treating the date of a notarial agreement as though it were the date of a marriage certificate.
That approach is legally questionable, administratively irrational and detached from how permanent life partnerships actually develop.
A notarial agreement is evidence, not a time machine
A marriage certificate records a legally recognised event that took place on a specific date.
A permanent life partnership works differently. There is ordinarily no official ceremony, registration date or government-issued certificate marking the moment two people became permanent partners. The relationship develops through cohabitation, shared financial responsibilities, children, family commitments and the parties’ conduct over time.
A notarial agreement may be concluded later to record and confirm the relationship that already exists. It can truthfully state that the parties have lived in a permanent and exclusive partnership since an earlier date.
That is not the same as unlawfully backdating the agreement.
An agreement signed in 2026 must reflect its true execution date. It may nevertheless attest, supported by evidence, that the partnership began in 2016. Requiring a notary to pretend that the document was executed ten years earlier would not strengthen the application. It would create a false document trail.
What the law actually says
Section 26(b) of the Immigration Act allows permanent residence to be granted to a foreign national who has been the spouse of a South African citizen or permanent resident for five years, provided the Director-General is satisfied that a good-faith spousal relationship exists.
The Act defines “spouse” to include a person in a permanent heterosexual or homosexual relationship.
Crucially, section 26(b) does not state that the parties must have possessed a notarial agreement throughout the five-year period. It requires the relationship, not the document, to have existed for five years. Immigration Act 13 of 2002
Regulation 3 requires life partners to submit a notarial agreement signed by both parties “attesting” to the existence and continued subsistence of the relationship. It also requires documentation showing mutual financial support and shared responsibilities and allows Home Affairs to interview the partners separately to test the authenticity of the relationship.
The regulation therefore contemplates an assessment based on several forms of evidence. It does not expressly say that the notarial agreement must itself have been signed five years before the permanent residence application. Immigration Regulations, 2014
Home Affairs’ own permanent residence application form asks for “proof that applicant has been spouse of citizen or permanent resident for five years.” It does not say that the proof must consist exclusively of a five-year-old notarial contract.
The distinction matters.
Children are evidence of family life, but the document date still wins
Consider a couple who have lived together for a decade.
They have children together. Both parents appear on the children’s unabridged birth certificates. They share a home, household expenses, financial responsibilities and parental obligations. Friends and relatives can confirm the relationship. Historical records place them together as a family over many years.
They later approach a notary to formalise and record their existing permanent partnership.
Home Affairs may still reject the permanent residence application because the notarial agreement itself was signed recently.
The Department is effectively saying that ten years of family life may carry less weight than the date printed at the top of one document.
That is not a meaningful assessment of whether the relationship exists. It is paperwork being allowed to override reality.
It also creates an impossible requirement. A couple cannot go back five years and sign a document. A notary cannot legitimately insert a false execution date. Applicants are therefore punished for failing to produce a historical document that the law did not clearly require them to obtain at the time.
The courts have already encountered the problem
In Savvas and Another v Minister of Home Affairs for the Republic of South Africa and Others, the Gauteng High Court considered a dispute involving a spousal visa and the prescribed period for a permanent life partnership.
The applicants argued that the way the period was incorporated into Regulation 3 through the notarial-agreement mechanism produced legal and practical irregularities. The matter also demonstrated the essential distinction between the date on which a relationship began and the documents later used to prove that relationship.
The Court did not finally declare the notarial requirement invalid. It did, however, find that the Director-General’s refusal to consider the applicants’ internal appeal was unlawful and remitted the matter to Home Affairs for reconsideration.
The case is not a final precedent on the five-year permanent residence question. It nevertheless shows that disputes about Home Affairs’ rigid application of the notarial-agreement requirement have already reached the courts. Savvas judgment
South Africa’s Constitutional Court has also repeatedly warned against immigration rules being administered in ways that unjustifiably interfere with dignity and family life.
In Nandutu and Others v Minister of Home Affairs, the Constitutional Court described family life as a core component of human dignity. In Rayment and Others v Minister of Home Affairs, the Court again intervened where immigration provisions imposed disproportionate consequences on foreign parents and their South African families.
These judgments do not remove the need to prove a genuine relationship. They do, however, reinforce the principle that immigration administration cannot disregard the lived reality and constitutional importance of family life.
What Home Affairs should be assessing
Home Affairs has a legitimate responsibility to identify fraudulent relationships created purely to obtain immigration status.
Nobody disputes that.
But fraud prevention requires the Department to examine the complete evidentiary record, including:
the couple’s sworn declarations;
the properly dated notarial agreement;
the historical commencement date recorded in that agreement;
unabridged birth certificates of children born to the couple;
proof of cohabitation;
leases, property and common-address records;
shared household and financial responsibilities;
medical-aid, insurance and beneficiary records;
correspondence and travel records;
affidavits from family members and independent witnesses; and
interviews with the partners where further verification is necessary.
If that evidence establishes a continuous, exclusive and genuine partnership for five years, the date on which the notarial agreement was eventually signed should not erase the preceding history.
Home Affairs must clarify its position
New World Immigration is calling on the Department of Home Affairs to clarify publicly whether it believes that section 26(b) requires a notarial agreement to have been physically executed five years before an application is submitted.
If that is the Department’s interpretation, it should identify the precise legislative provision on which it relies.
If it is not the Department’s official interpretation, adjudicators must be instructed to stop rejecting applications merely because the agreement was concluded after the relationship began.
A lawful agreement signed today can record and attest to facts that began years earlier. Courts do this through affidavits and oral evidence every day. Government departments routinely determine historical facts using documents created after the events concerned.
There is no logical reason why a permanent life partnership should be treated differently.
The law requires five years of a genuine relationship. It does not require couples to manufacture a five-year-old document.
When children, shared responsibilities and a decade of family life cannot overcome the date on a notarial agreement, the system is no longer testing whether a relationship is genuine.
It is testing whether applicants somehow predicted, years in advance, the documentary interpretation Home Affairs would later choose to impose.