Kicking the can down the road — the ZEP saga continues

By Muchengeti Hwacha | Dec. 8, 2023 | 5 Min read

THERE are about 178 000 Zimbabwean Exemption Permit (Zep) holders. When factoring in children and dependant family members accompanying the permit holders, the number of affected people could easily swell. The magnitude of the decision to terminate the Zep programme cannot be overstated.

On December 1, 2023, South Africa's Home Affairs minister Aaron Motsoaledi announced that he was granting Zimbabweans special exemption permits — the right to continue to live, work and study in South Africa for the next two years. The decision, the latest chapter in the long saga surrounding these special permits, brings some reprieve for those affected but still leaves many issues unresolved.

In April 2009, the minister introduced an immigration programme to respond to the high number of undocumented Zimbabweans living in South Africa or being processed through the asylum system. They had fled political and economic instability in Zimbabwe. The programme created Zep which allowed holders to live, work and study in South Africa.

The permits were renewed twice, in 2014 and 2017. The latest renewal was set to expire on December 31, 2021.

On November 24, 2021, the South African Cabinet released a statement on its decision to no longer extend the ZEPs. Court papers revealed that this was a reflection of a decision that had been made by the Home Affairs minister in September of the same year.

This announcement was followed by some confusion, when the minister published a directive relating to the termination of the ZEPs, then withdrew it. He then published a notice purporting to terminate the ZEPs, and giving holders a 12-month grace to return to Zimbabwe or apply for one of the other visas provided for in the Immigration Act.

This notice was followed by a directive issued on January 7, 2022, effectively repeating the content of the notice. The grace period was set to end on December 31, 2022.

In June 2022, various organisations, including the Helen Suzman Foundation (HSF), launched court applications challenging the minister’s decision.

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The Home Affairs minister issued two further directives extending the validity of the ZEPs, on September 2, 2022 and June 7,2023, cumulatively extending the deadline to December 31, 2023.

On June 28, 2023, the Pretoria High Court delivered a judgment on the application brought by the HSF. The court set aside the minister’s decision to terminate the ZEPs. The minister has appealed the judgment and the matter is currently before the Supreme Court of Appeal.

Motsoaledi’s decision on December 1, 2023, to extend the ZEPs for a further two years is the latest chapter in this saga. The minister said that, notwithstanding the two-year extension, the programme is still set to end and Zep holders will be forced to return to Zimbabwe or live in South Africa undocumented.

Unaddressed issues

The director of the HSF welcomed the minister’s announcement, calling it a “relief to permit holders and their families”, and, indeed, it is. However, the core issue in dispute in the HSF litigation has yet to be addressed.

The court found that the minister did not act in a procedurally fair manner when deciding to terminate the ZEPs, in that he failed to give the affected people an opportunity to make representations. His invitation to make representations after the decision to terminate had already been made, the court continued, “runs counter to the very purpose of procedural fairness and procedural rationality”.

The December 1, 2023 announcement communicated that the minister was proceeding with the termination of the ZEPs, albeit with a two-year indulgence. This decision, again made without an opportunity for the affected people to make representations, fails to meet the standard of procedural fairness articulated by the court.

Angola

The minister’s conduct in this regard must be understood in the context of how the special permit programme for Angolans was conducted.

During the armed conflict in Angola, many fled to South Africa and were offered protection as refugees. After hostilities in 2002, the United Nations High Commissioner for Refugees (UNHCR) and the South African and Angolan governments agreed to the voluntary repatriation of Angolan refugees.

In 2012, the UNHCR published an extensive investigative report which concluded that Angolans no longer needed refugee protection. Resultantly, in 2013 the South African Home Affairs embarked on an exhaustive engagement with the affected Angolans and their government. They held meetings and media engagements and established information desks at refugee reception offices.

After this engagement it was decided that those Angolans who wished to be voluntarily repatriated could do so with the help of the UNHCR to reintegrate. Others who wished to remain in South Africa were given special Angolan Cessation Permits, valid for two years.

After negotiations between civil society groups and the Home Affairs minister, the Angolan Exemption Permits were introduced, which granted conditional rights of permanent residency.

In the case of the Zep holders, there is no end to the political and economic conditions in Zimbabwe that brought them to South Africa in the first place. There were no broad consultations with the affected persons or civil society. Finally, there was no option for voluntary repatriation with UNHRC assistance.

Potential for family separation

The minister’s announcement included a mostly unnoticed caveat to the two-year reprieve granted to Zep holders. The conditions under which the Zep holders are to remain include that they cannot change their immigration status while in South Africa. The right to change one’s immigration status while in South Africa is afforded to all, except those on visitor’s or medical treatment visas.

This condition is at odds with the minister’s encouragement that Zep holders must if they qualify, migrate to other permits. Why the minister would now restrict Zep holders from migrating to other permits is baffling.

The other issue that arises is the real risk of family separation. For example, a Zep holder who marries a South African citizen or permanent resident must leave South Africa and his or her spouse to apply for a spousal permit in Zimbabwe.

Similarly, a mother or father with a Zep must leave South Africa and his or her child to apply for a critical skills visa. South African law places a high premium on the right to family life. Forcing families to separate in this manner has been decried by our apex court in the cases of Nandutu v Home Affairs minister and Dawood v Home Affairs minister. In the case of children, it would be untenable to force a separation from a parent and would run contrary to the constitutional obligation of the State to act in the best interest of the child.

A way forward

As widely publicised, there are about 178 000 Zep holders. When factoring in the children, and dependent family members accompanying the Zep holders, the number of affected people could easily swell. The magnitude of the decision to terminate the Zep programme cannot be overstated. The tenets of procedural fairness articulated in law require that the minister allow the affected people to make representations. This would, of course, also be the moral thing to do and there is precedent for it as we have seen with the Angolans.

Should the minister engage the relevant stakeholders to make representations, the Asylum seeker, refugee and migrant coalition would advance the position that Zep holders are not dissimilar to the Angolans before them. Therefore, offering Zep holders a pathway to conditional rights to permanent residence is a competent policy choice in the circumstances.

Muchengeti Hwacha is executive director of the Asylum Seeker, Refugee and Migrant Coalition

This article first appeared in Daily Maverick