Home Affairs in the dock over termination of ZEP system

One of the most important human rights cases of recent decades got underway in the Pretoria High Court on Tuesday, with no fewer than four separate cases challenging Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) system.

First to the podium was the Helen Suzman Foundation (HSF), represented by Advocate Steven Budlender, which is asking a full bench of three judges to set aside Motsoaledi’s November 2021 decision as unlawful, unconstitutional and invalid.

An inevitable impact of his decision is that tens of thousands of ZEP holders will be left undocumented due to the practical difficulties of obtaining alternative permits that would allow them to continue living and working in South Africa.

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Pressure

As the 30 June 2023 deadline for ZEP holders to obtain alternative permits approaches, the fate of 178 000 permit holders and their families hangs in the balance.

Last week it was announced that the case would be heard online rather than in person, a decision that angered some Zimbabweans who feel their future security in the country is under threat.

Motsoaledi has urged them to apply for ‘mainstream’ visas, but few are likely to qualify in terms of the Department of Home Affairs Critical Skills List.

Budlender said there is no evidence that any of the estimated 4 000 ZEP holders who applied for waivers are receiving an alternative permit.

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Children’s rights concerns

Several of the groups challenging the minister’s decision to end the ZEP system point to the catastrophic effect this will have on the region. Hundreds of thousands of people, including children who have grown up and attended school here, would be forced to uproot and relocate to Zimbabwe.

“We do not say that the minister had no power to terminate [the ZEP system]. He did. But he had to consult and consider the impact on Zimbabweans and make sure he did not breach fundamental human rights in the Constitution,” argued Budlender.

There are multiple grounds on which the decision should be set aside by the court, including its lack of procedural fairness, he added.

The decision further trampled constitutional guarantees of the right to dignity and children’s rights, not least because there is a danger that children could be separated from their parents.

The minister made the decision without prior consultation with ZEP holders or the public, he argued.

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For and against

In an affidavit before the court, HSF executive director Nicole Fritz said the minister’s decision was procedurally unfair and irrational; posed an unjustified limitation of the constitutional rights of ZEP holders and their children; the decision was taken without regard to the impact on ZEP holders; and it ignores the present living conditions in Zimbabwe.

The HSF argued that the Zimbabwean economy has not recovered sufficiently to allow ZEP holders to return to their country of origin.

Department of Home Affairs director-general Livhuwani Makhode deposed in an affidavit that the relief the HSF is seeking would effectively confer rights of permanent residence on ZEP holders, contravening the express conditions under which those permits were granted.

“Moreover, it is estimated that there are more than a million undocumented Zimbabweans currently living in South Africa,” says Makhode.

“An order that declares that it is unconstitutional to deny further exemptions to ZEP holders until the Zimbabwean economy has recovered sufficiently, whatever that might mean, would entitle any undocumented Zimbabwean to compel the minister to grant him/her an exemption from the provisions of the Immigration Act because of the economic situation in that country.”

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Truck drivers add their voice

Also challenging the minister’s decision are the ZEP Holders Association (Zepha), the Zimbabwe Immigration Federation and the All Truck Drivers Forum and Allied South Africa (ATDFASA).

Zepha also wants the decision set aside, but argues that ZEP holders have the right to permanent residence in SA.

Counsel for ATDFASA Advocate Matthews Mojapelo argued that the minister had no right to grant the exemption permits in the first place, nor to extend them when they expired.

Various iterations of the ZEP system have been in place since 2009, allowing Zimbabweans fleeing political and economic turmoil at home to live, work and study in SA.

Small population of ZEP holders

ATDFASA wants the entire exemption permit system to be declared unlawful and for ZEP holders to be granted 12 months to get their affairs in order – either obtain an alternative visa, or return to Zimbabwe.

David Simonsz, counsel for the Consortium for Refugees and Migrants in South Africa (CoRMSA), a non-profit organisation tasked with promoting and protecting refugee and migrant rights, disputed many of the reasons cited for the termination of the ZEP system, including lack of funds, and claims that economic conditions had improved in Zimbabwe, thereby making it more attractive for those returning.

It is also claimed that undocumented Zimbabweans are contributing to unemployment in SA, although HSF and others argued that 178 000 permit holders out of a population of more than 60 million makes hardly any difference to employment figures.

The case resume on Wednesday with arguments from the counsel for the minister of Home Affairs.

This article originally appeared on Moneyweb and was republished with permission.
Read the original article here.