Long: Zimbabweans queue outside the home affairs office in Johannesburg. The government has decided to withdraw the special dispensation previously afforded to Zimbabweans. (Lebohang Masiloane/ The Times/Gallo Images)
The Pretoria high court this week reserved judgment on a challenge to the ministry of home affairs’ decision to terminate the Zimbabwean Exemption Permit (ZEP) which has allowed tens of thousands of Zimbabweans to live, work and study in South Africa since 2009.
The Helen Suzman Foundation (HSF) has pleaded that the decision to terminate the status offered to Zimbabweans who fled political strife at home was procedurally unfair and irrational and should be set aside.
It was done without regard for the ZEP-holders and infringed on their constitutional rights and those of their children.
“In reliance on these permits, ZEP-holders have established lives, families and careers. All of these have now been placed in jeopardy,” the foundation argued in court papers.
Advocate Steven Budlender, for the foundation, said the Zimbabweans in question could never be confused with illegal immigrants.
“They have followed the rules for more than 13 years by applying for exemption permits, paying the required fees, and providing proof of employment, studies or legitimate businesses,” he said.
“Yet they are now at risk of being left undocumented, with all the vulnerability this entails.”
The termination will take effect on 30 June when a six-month grace period expires.
HSF said it was not asking for the permits to be extended permanently, but demanding that there must be sound justification for termination and a reasonable opportunity for ZEP-holders to regularise their status before it takes effect.
It was not in dispute, Budlender said, that Home Affairs Minister Aaron Motsoaledi failed to consult permit-holders and the public before announcing his decision.
It was further not in dispute that it was logistically nigh impossible for permit holders to obtain “mainstream permanent resident permits” within the grace period, given the backlogs at home affairs offices.
The ministry, in its papers, acknowledged the difficulty but offered no way of overcoming it.
Home Affairs Minister Minister Aaron Motsoaledi.(Alet Pretorius/Foto24/Gallo Images)
Thirdly and crucially, Budlender said, there is no dispute Zimbabwe remains politically unstable, that suppression of dissent continues and that poverty has deepened.
If all of the above was common cause, it was adequate in law to declare Motsoaledi’s decision invalid and unlawful, he submitted.
The HSF said since the reprieve was introduced in 2009, as part of the Dispensation of Zimbabweans Project (DZP), successive home affairs ministers have deemed it an important gesture of solidarity and pan-Africanism.
In 2014, when then minister Malusi Gigaba announced the DZP would be replaced by the Zimbabwean Special Permit, he recognised that the prospect of termination had caused anguish to people who had “made notable contributions in our education and health sectors … and in many other sectors”.
In 2017, when the special permit was converted into the exemption permit, the government said it was mindful of its “political imperative to build peace and friendship in the continent”.
Such consideration ended under Motsoaledi, the foundation said, though the stance adopted by his predecessors is written into the white paper on international migration.
The policy paper stressed that exemption permits enhanced national security, prevented migrants from being a drain on state resources and protected them from extortion.
“The white paper remains government policy and has not been withdrawn. Yet, the minister has now turned his face against this policy in deciding to terminate ZEPs.”
Budlender said Motsoaledi misled the public when he gave assurances in November 2021 no decision had been taken regarding the ZEP, which was due to expire a month later.
“It subsequently emerged that the minister had already taken a decision to terminate the ZEP programme in September 2021, behind closed doors and without any public consultation.”
Comment was only invited when an initial 12-month grace period was granted.
The foundation said a submission by the director-general of home affairs to the effect that there was no final decision to terminate all ZEPs, nor had the possibility of further extensions been ruled out, rang hollow when one considered Motsoaledi’s unequivocal public announcements.
“The director-general’s attempt to reinterpret the minister’s decision, after the fact, is unsustainable. Not only has the minister failed to depose a confirmatory affidavit, but the director-general’s version contradicts all that has come before.”
Motsoaledi’s argument that ZEP holders faced no harm because they had the opportunity to apply for other visas was equally hollow, Burlender said, as the legal and logistical barriers to doing so, which had informed the decision to offer exemption permits, had not fallen away.
It meant ZEP holders faced losing their jobs, homes and access to banking services and being separated from their spouses and children.
The foundation’s court papers quoted an industrial engineer who supported his family in Bulawayo, Zimbabwe, with the salary he earned in South Africa, as saying: “Even if I could somehow afford to work my way through the visa application system, I am concerned that the system is so dysfunctional that I could be left in the lurch for many years.”
Applying for a general work visa entails having an employer persuade home affairs that a suitable local candidate could not be found for a particular job. Critical skills visas have more stringent conditions and the application fees for business visas are prohibitively high. Relative visas do not confer the right to work.
Hence, those who applied for one faced an impossible choice, Budlender said: “Stay on a relatives’ visa and face unemployment and destitution or leave the country and break up the family unit.”
The department of home affairs countered that the HSF was being disingenuous in trying to persuade the court that it was not effectively asking for the permit to be extended in perpetuity.
“When regard is had to the substance of the relief sought, it is clear that HSF in truth seeks a permanent/indefinite right for ZEP holders to remain in the country.”