Court challenge against scrapping Zimbabwean permit will go ahead

The government says Zimbabwean Exemption Permits will come to an end by June 2023. The blanket decision to scrap the permits is being challenged in court. Photo: Tariro Washinyira

• The Helen Suzman Foundation and the Zimbabwe Immigration Federation will proceed to challenge in court the decision to scrap Zimbabwean Exemption Permits (ZEP).
• The challenge will go ahead though government has extended the ZEP by six months to June 2023.
• 178,000 permit holders face deportation if they cannot find some alternative legal permission to live in South Africa.
• The foundation has slammed an opposing affidavit by the Home Affairs director-general as a “ploy to downplay the impact of the Minister’s decision”.

The Helen Suzman Foundation (HSF) and the Zimbabwe Immigration Federation are proceeding with court action against Home Affairs Minister Aaron Motsoaledi over the scrapping of Zimbabwean Exemption Permits (ZEPs).

The court challenge will proceed even though the minister recently announced an extended “grace period” of another six months for some 178,000 permit holders to “regularise their status” or leave the country, until June 2023. The initial deadline to apply for waivers or alternative visas was the end of December this year.

The minister first announced in December 2021 that the ZEP, introduced 13 years ago to regularise the situation of Zimbabweans already living, working and studying in South Africa, was to be scrapped.

In media interviews, the minister said the six-month extension was necessary because so few permit holders had made applications for waivers and other visas and it was on the advice of a special ministerial committee he appointed to oversee the process.

The HSF, in its application filed in the Pretoria High Court, says the blanket decision not to renew ZEPs was “hasty, untransparent and ill-considered”.

The federation wants the court to rule that the decision was unlawful, unconstitutional and invalid, and that it must be reviewed and remitted back to the minister for reconsideration “using a fair process” involving meaningful engagement with those affected and civil society.

The federation is seeking an interdict, restraining the government respondents, including the minister, the Department of Home Affairs, the police and border control, from detaining or deporting any holder of a ZEP, pending a further application, still to be filed, to review and set aside the minister’s decision.

In opposing the HSF application, Director-General of the Department of Home Affairs Livhuwani Tommy Makhode said the grace period had been granted precisely for the purpose of allowing permit holders to make representations.

It was a “meaningful opportunity” to regularise their status.

He said the ZEPs were always intended to be temporary and if the court granted the relief, it would “effectively confer rights of permanent residence on ZEP holders, in the face of express conditions on which the permits were issued”.

Director-general “contradicts” minister in court papers

In a responding affidavit, HSF Executive Director Nicole Fritz, said the foundation did not contend that the minister was obliged to extend ZEPs in perpetuity.

She said the foundation argued that a decision to terminate the programme could only be lawful if it followed a fair and rational process, based on sound justification, and giving existing ZEP holders a proper opportunity to get their affairs in order.

Fritz said Makhode “seeks to create the impression that the Minister may grant further extensions in terms of waiver applications, based on individual circumstances on a case by case basis”.

“The Director-General’s attempt to re-interpret the Minister’s decision is a contrivance and unsustainable … it is inconsistent with the decision communicated to ZEP holders and the public at large … it is directly contradicted by the Minister’s own public statements,” she said.

These were to the effect that he had made a final decision to terminate ZEP’s and the only option open to holders was to apply for other visas available under the Immigration Act.

“The Director-General’s contradictory position on individual exceptions demonstrates that there is no genuine intention to afford this remedy to ZEP holders. This is merely a ploy to downplay the impact of the Minister’s decision,” Fritz said.

She said there was no dispute that the Minister had failed to consult with the permit holders, civil society and the public before taking the decision, that most permit holders would not be able to get other visas, and that Zimbabwe remained politically unstable and was still experiencing extreme poverty.

She said waiver applications required that those applying had to show “good cause” why the specific provisions in the Immigration Act should not apply to them.This required the involvement of lawyers, which most permit holders could not afford.

Fritz attached an affidavit from an employer of a permit holder who described how she ultimately gave up, in frustration at the complexity, costs and delays in the process.

The minister had also made the “astonishing” “admission” that in more than nine months, not a single decision in respect of the 4,000 alleged waiver applications, had been made, Fritz said.

“The ZEP holders were, on the Director-General’s own admission, forced by the dire conditions in their country to come to South Africa. They have been in the country for over a decade, have invested in businesses and careers, built families, have children and have forged lives here … it cannot be seriously denied that the Minister’s decision limits their right to dignity.

“This is compounded by his refusal to engage with them before making his decision, sending a message that their voices and experiences count for nothing.”

Fritz also weighed in on the public “attack” by Motsoaledi on the HSF for going to court, in which he stated that the foundation was engaged in a “desperate bid to blackmail the nation”, and that South Africa “was now under the dictatorship of some of the NGOs with some having faceless and dubious funders”.

“That the HSF should earn such scorn … for acting in the public interest and attempting to secure relief for a particular vulnerable grouping in South Africa, is an affront to the best traditions of our constitutional order,” she said.

The applications are to be heard together and the hearing has been set down for three days, from 5 to 7 October.

The consortium for Refugees and Migrants in South Africa has joined the proceedings as an intervening party.

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