Renting property to a foreign national in South Africa is perfectly lawful. The real question is whether that person is legally in the country—and what the landlord, estate agent or accommodation provider is expected to check.

A prospective tenant presents a foreign passport and says their visa application is pending. A guest arrives at a lodge with a visa that is close to expiring. An estate agent is asked to place a foreign national in a residential property.

What must the owner, agent or accommodation provider do?

The answer depends on the type of accommodation being provided and the role of the person involved.

Foreign national does not mean illegal foreigner

South African law does not prohibit property owners from renting accommodation to foreign nationals.

The Immigration Act defines a “foreigner” as a person who is not a South African citizen. An “illegal foreigner” is a foreigner who is in South Africa in contravention of the Act.

That distinction is fundamental. A person may lawfully be in South Africa under a visa, permanent residence permit or another form of recognised status. Foreign nationality alone is not a lawful reason to presume that someone is in the country illegally.

What section 40 requires

Section 40 of the Immigration Act is titled “Keeping of registers of lodgers by certain persons”.

It applies where lodging or sleeping accommodation is provided for payment or reward and the premises fall within a class prescribed by the Immigration Regulations.

The prescribed classes are:

• Hotels and motels
• Boarding houses and lodges
• Guest houses
• Apartment buildings

The person in charge must keep a register of everyone provided with lodging or sleeping accommodation. Each lodger must sign the register and provide the prescribed particulars.

The register must include:

• The lodger’s full names and surname
• A copy of their identity document or passport
• Their residence status in South Africa
• Their normal residential address
• Their signature

The register must be safeguarded for two years and produced for inspection when required by an immigration officer or police officer. Failure to comply, providing false or incorrect particulars, or obstructing an officer is an offence punishable by a fine or imprisonment for up to 12 months.

Section 40 does not automatically apply to every private rental or individually operated short-term rental. It applies where paid lodging or sleeping accommodation is provided on premises falling within one of the prescribed classes. Where the classification of a property is uncertain, advice should be obtained based on the nature and operation of the premises.

The wider risk for landlords: section 42

Section 42 deals with assisting illegal foreigners.

Subject to the Act, and except for necessary humanitarian assistance, it prohibits a person from helping an illegal foreigner or assisting a foreigner with a transaction that violates that person’s status.

The examples expressly include:

• Harbouring a person, including providing accommodation
• Letting, selling or otherwise making immovable property available to that person

In criminal proceedings, it may not be sufficient for an accused person simply to say that they did not know the foreigner’s status. Section 42 states that this is not a defence if the person “ought reasonably to have known” the position.

This does not create a blanket prohibition against renting to foreign nationals. It does, however, mean that an owner should not ignore obvious warning signs or knowingly make accommodation available to someone who is unlawfully in South Africa.

Depending on the offence, contravening the duties contained in sections 38 to 46, or knowingly helping someone remain in South Africa unlawfully, may result in a fine or imprisonment for up to five years.

Estate agents have an additional duty

Estate agents are specifically prescribed under section 45 of the Immigration Act and regulation 38 of the Immigration Regulations.

When facilitating the purchase, sale or leasing of fixed property, an estate agent must scrutinise the person’s passport or identity document. The purpose is to satisfy the agent that, on the face of the document:

• It belongs to the person presenting it
• If the person is a foreigner, they are legally in South Africa

Section 45 also requires prescribed persons to report to the Director-General an illegal foreigner or a person whose status or citizenship could not be ascertained.

This express regulatory process applies to estate agents. A private owner acting without an estate agent is not automatically subject to the identical procedure in regulation 38, although reasonable checks remain prudent because of the potential exposure under section 42.

A practical verification process

Before entering into a lease or accepting a booking where immigration status is relevant, an owner, agent or accommodation provider should consider:

1. Inspecting the original passport or identity document and checking that it appears to belong to the person presenting it.
2. Examining the visa, permanent residence permit or other status document relied upon.
3. Checking the document’s validity dates and looking for obvious alterations, inconsistencies or expired endorsements.
4. Submitting the document to the Department of Home Affairs through its internal visa-verification email channel to confirm whether it is authentic.
5. Keeping the verification request and any response received from Home Affairs on file.
6. Requesting specialist advice where the person relies on a pending application, court order, waiver, exemption or departmental concession.
7. Including a clause requiring the tenant to provide updated status documents if their immigration position changes.

Verification through Home Affairs is not expressly required by section 40. It is, however, a sensible additional step where the authenticity of a document is uncertain. Keeping the correspondence on file also provides evidence of the steps taken to establish the person’s position.

A receipt showing that an application was submitted does not necessarily prove that the applicant presently holds lawful status. The effect of a pending application depends on the person’s existing status, the type of application and any applicable directive, concession or court order.

The Act does not expressly impose a general periodic monitoring programme on every private landlord. Nevertheless, recording an expiry date and requesting updated documentation before it passes may be a sensible risk-management measure.

If a tenant’s status becomes uncertain

An expired document should not lead to an immediate lockout or the removal of the tenant’s possessions.

The owner should first request updated documentation and obtain professional advice. There may be a pending application, a legally effective extension, litigation or another fact that changes the position.

Immigration compliance also does not give a landlord permission to bypass South Africa’s eviction laws. Section 26(3) of the Constitution requires a court order before a person may be evicted from their home.

The relationship between immigration law and unlawful-occupation proceedings can be complex, but self-help remains legally dangerous. Where termination or eviction is being considered, the owner should consult a property attorney.

Immigration advice and eviction advice address different legal questions.

Protecting passport and status information

Copies of passports, identity documents and immigration records contain personal information.

The Protection of Personal Information Act requires personal information to be processed lawfully and reasonably. The information collected must be adequate, relevant and not excessive for its purpose.

It must also be retained only for as long as necessary or legally required and protected against loss, unauthorised access or unlawful processing.

Accommodation providers covered by section 40 must safeguard their lodger registers for two years. That specific two-year rule should not automatically be treated as a universal retention period for every private landlord.

Documents should be stored securely, access should be limited, and applicants should be told why the information is being collected.

The practical position

A responsible compliance process should distinguish between:

• A lawful foreign national
• A person whose documents require clarification
• A person who is known, or reasonably appears, to be in South Africa unlawfully

The purpose is not to discriminate against foreign tenants. It is to make a reasonable, documented decision based on the person’s actual immigration position and the legal duties applicable to the owner, accommodation provider or estate agent.

Frequently asked questions

Can a foreign national legally rent property in South Africa?

Yes. South African law does not prohibit a foreign national from renting property. The important distinction is whether the person is legally in South Africa. Section 42 prohibits assisting an illegal foreigner, including by providing accommodation or making immovable property available.

Must every private landlord verify a foreign tenant’s visa?

The Immigration Act does not prescribe an identical step-by-step verification process for every private landlord. However, section 42 states that lack of knowledge may not be a defence where the landlord ought reasonably to have known the person’s position. A reasonable and documented check is therefore prudent.

Do estate agents have a specific verification duty?

Yes. Regulation 38 requires an estate agent facilitating the leasing of fixed property to scrutinise the person’s passport or identity document and, in the case of a foreigner, satisfy themselves that the person is legally in South Africa.

Does section 40 apply to every Airbnb or private rental?

Not automatically. Section 40 applies where paid lodging or sleeping accommodation is provided on premises falling within a prescribed class: hotels and motels, boarding houses and lodges, guest houses, and apartment buildings. The operation and classification of the particular premises must be considered.

What information must a section 40 lodger register contain?

It must contain the lodger’s full names and surname, a copy of their identity document or passport, their residence status in South Africa, their normal residential address and their signature. The register must be safeguarded for two years.

How can the authenticity of a South African visa be checked?

The document can be submitted to the Department of Home Affairs through its internal visa-verification email channel. The request and any response received should be kept on file as part of the compliance record. Gema Visa Services can assist with this process.

What should a landlord do if a tenant’s visa expires?

The landlord should request updated proof of status and obtain professional advice. An expired document does not authorise an immediate lockout, removal of possessions or eviction without the required legal process.

Unsure about a tenant’s immigration status?

A visa may appear valid without necessarily being authentic, current or applicable to the person presenting it.

Before signing a lease or placing a foreign tenant, Gema Visa Services can assist with reviewing the immigration documents, obtaining verification from the Department of Home Affairs and assessing the person’s current immigration position.

If something does not add up, it is better to establish the facts before the property is made available.

Contact Gema Visa Services for a professional immigration status and document assessment.

Questions involving the termination of a lease or eviction should be referred to an appropriately qualified property attorney.

Legal sources

• Immigration Act 13 of 2002, particularly sections 1, 40, 42, 45 and 49
• Immigration Regulations, 2014, particularly regulations 36 and 38
• Protection of Personal Information Act 4 of 2013
• Constitution of the Republic of South Africa, 1996, particularly section 26(3)

This article provides general information and does not constitute legal advice. Immigration directives, concessions and legislation may change, and individual circumstances should be assessed before action is taken.