Although the high court dismissed the Helen Suzman Foundation’s request for a declarator saying Zimbabwean Extension Permits will remain valid while the minister of home affairs appeals against an earlier ruling, it nevertheless confirmed the permits are valid until June 2024.
In a judgment on Monday, 6 November, the Gauteng Division of the High Court in Pretoria confirmed that the Zimbabwe Exemption Permit (ZEP) would remain valid until June 2024 and holders would continue to enjoy the protections afforded to them until that date.
But the court dismissed the application by the Helen Suzman Foundation (HSF) to enforce the judgment made in June 2023, which found Home Affairs Minister Aaron Motsoaledi’s decision to cancel ZEPs was unlawful and included a directive that created security for permit holders until all appeal processes were exhausted.
The ZEP programme, introduced in 2009, allows more than 170,000 Zimbabweans to live and work in South Africa.
The programme was extended to the end of June 2024 after the HSF, which applied to court with the Consortium for Refugees and Migrants in South Africa (Cormsa), won the earlier case, which was aimed at getting the Department of Home Affairs to follow fair procedures, consult ZEP holders and create a viable means for them to enter the normal visa permit system before it cancelled the permit.
Motsoaledi, however, has attempted to appeal against the judgment, and the HSF brought an application in September seeking the enforcement of the high court’s interim order of June 2023 until the conclusion of all appeal processes.
HSF executive director Nicole Fritz said that despite the appeal for enforcement being dismissed in court this week, the foundation was pleased the court had acknowledged the validity of the permit until fair processes could be undertaken.
“HSF believed the court’s pronouncement on the status and effect of the June 2023 order was required in the face of growing confusion amid shifting stances taken by the Department of Home Affairs as to the rights of ZEP holders as well as its obligations.
“While HSF was not successful in obtaining an order enforcing the interim relief until all appeal processes are concluded, it welcomes the confirmation of the validity of the ZEP and protections afforded to permit holders until at least June 2024,” said Fritz.
Home Affairs’ response
In a statement released on Wednesday, the Department of Home Affairs said Motsoaledi “whole-heartedly welcomes the full court judgment on the enforcement application” in the case “dismissing the ill-conceived enforcement application” launched by the HSF and Cormsa.
It also criticised the civil society organisations for seeking a personal costs order against Motsoaledi.
“This was dismissed by the full court. HSF has been launching applications in court against the minister in the so-called ‘public interest’. The question is whose public interest is HSF and its fellow travellers serving?” the Home Affairs statement read.
Fritz said the foundation was not only litigating against the ZEP being nullified but also fighting for the principles of the Constitution, which did not allow for a decision to be taken that could change families’ lives and livelihoods without approaching affected communities, creating an alternative and giving people time to secure permits that allow them to continue living in the country.
Motsoaledi and his department do not see it that way, as they said Zimbabweans must wake up and seek other documentation.
“In essence, HSF and Cormsa sought the judgment whereby the court will issue an order to compel the department to implement the adverse judgment regardless of any subsequent appeal by the minister in any court.
“This judgment must serve as a wake-up call to the affected Zimbabwean nationals to follow the procedures outlined by the minister to regularise their stay in the Republic and forget about false promises,” the statement said.
Home Affairs’ recommendations for ZEP holders
In a committee meeting in June, before the court found the termination of ZEPs to be unconstitutional, Motsoaledi told Parliament that ZEP holders had to apply for a waiver while the permits were due to expire at the end of 2023. The purpose of the waiver was to exempt individuals from certain requirements when applying for regular visas and permits.
Individuals in employment (a condition for obtaining the ZEP) would need to apply for a regular visa and permit, skipping the step of going to the Department of Labour and Employment.
The waiver would help bypass the requirement to apply from one’s country of origin.
“Given the circumstances of dealing with individuals already in South Africa, a waiver was granted to avoid the need for applicants to return to their birth country to apply. The application was for a waiver approved and signed by the minister, followed by the appropriate visa and permit,” Motsoaledi said.
Fritz said waivers had not been successful in securing the futures of families, some of whom had lived in SA for decades.
“We know there have been several applications for waivers but we haven’t seen a large number of processed applications, and even if you get a waiver it doesn’t guarantee you will secure a visa,” Fritz said.
In court, the HSF and Cormsa argued that Motsoaledi’s suggestions that ZEPs might still be cancelled while he appealed against the earlier judgment had created anxiety that could affect permit holders’ families and livelihoods and even national security.
‘Imagined calamities’
Responding to this week’s judgment, Home Affairs said, “The full court correctly dismissed the suggestion that there would be ‘calamities’ in the event the enforcement order is not granted. These looming calamities and catastrophes only exist in the minds of HSF and Cormsa. They now approached the court asking for more than they sought in the main application. The court was justified in dismissing the application,” the statement read.
Fritz said, “It isn’t that the minister has to extend the permit in perpetuity, but I think it is concerning that they talk of an imagined calamity. There might be a fair process run and real empirical evidence where the department does have to end the ZEP.
“In a constitutional framework, one would hope that leaders appreciate the human toll, gravity and the consequences of their decisions on individual human lives.
“So even if the minister ultimately, having run a fair process, having consulted ZEP holders and given fair, sound reason [does not extend the permits], it’s hard to imagine a constitutionally minded minister and department would say to ZEP holders that their calamities are imagined when you look at the children, the families, the homes, the lives that have been built here.
“This idea that somehow it’s fictional that people will experience hardship, I think speaks to a kind of callousness that is hard to square with a constitutionally minded decision-maker.”
There is still considerable fear among Zimbabweans that the government will deport ZEP holders if no long-term solution to the issue is found, particularly as politicians focus on the issue of migration ahead of next year’s elections.
Zimbabwean national and activist Talent Rusere said Zimbabweans should prepare for deportation.
“If you are a Zimbabwean, please prepare to go to Zimbabwe before the expiration of these ZEP permits as there will be massive deportations. All South African politicians are utilising the hate between South Africans and Zimbabweans in South Africa to stretch their political mileage,” Rusere said.
