The Zimbabwe Exemption Permit (ZEP) scheme is the “largest case of fraud and theft ever committed by the government of one country over nationals of its neighbouring country in African history”, according to court papers filed by the Zimbabwe Exemption Permit Holders Association (Zepha).
The association is asking the Gauteng High Court to grant permanent residence to roughly 200 000 ZEP holders.
The ZEP system, which allows Zimbabweans to work in SA, was suspended in December 2021, then extended until the end of 2022, to give permit holders more time to apply for other permits or else face deportation or voluntary repatriation to Zimbabwe.
One of the reasons cited by the Department of Home Affairs (DHA) for suspending the ZEP scheme is its cost.
This is contradicted by Zepha chair Sandra Chinyanya, who argues in an affidavit before the court that the DHA has been raking in cash since it introduced the permit scheme for Zimbabweans more than a decade ago.
Deposing for the DHA, Director-General Livhuwani Makhode says an amount of R145.8 million was requested from National Treasury to start the special programme of granting exemption, but only R15 million was allocated to deal with the exemption process for SADC (Southern African Development Community) nationals.
This small allocation was evidence that granting exemptions to SADC nationals seeking asylum was unsustainable, says Makhode in an affidavit.
Chinyanya replies that roughly 200 000 Zimbabweans had to pay R1 090 each for the ZEP, and R890 for its predecessor, the Zimbabwe Special Permit (ZSP), making a total of R374.2 million – and that doesn’t count unsuccessful applicants, nor the taxes paid in SA by successful applicants over the last decade or more.
SA is financially exploiting ZEP holders, says Chinyana.
The respondents in the case are the minister and DG for Home Affairs, President Cyril Ramaphosa and the cabinet.
“This fact, together with the allegations of corruption in the Zondo Commission, which proved corrupt money [was] being made by State officials from migration, begs the question what happened to the total estimated amount of R374.2 million successful exemption holders paid for their permits, and why [Home Affairs] approached National Treasury to begin with.”
The permit scheme is a grotesque shakedown of an ethnic minority, “no different from fascists of old, shamelessly cashing in on potentially billions of rands from mostly Zimbabwean migrants,” says Advocate Simba Chitando, who is representing Zepha, in a strongly worded statement.
“The next stop by cabinet will obviously be the white population of this country, through a reform agenda, and then any other ethnic minority with means, until the majority have looted the minority,” he adds.
A ‘sober judiciary’ the only hope
“The only hope for South Africa, and the short-term stability of the region, is a sober judiciary. Together with business leaders who must now diversify investments into South Africa’s neighbours to avoid the inevitable economic collapse on the horizon.”
The case was launched in October 2021, when Zepha brought an application before the Gauteng High Court to force Home Affairs to issue them with South African ID documents and declare them permanent residents.
In reply, Home Affairs’s Makhode argues that the ZEP system has its genesis in the colonial era.
The 1937 Aliens Act was introduced to regulate the entry and residential status of those citizens from other Commonwealth countries at a time when SA was a member of the Commonwealth.
Zepha says the department’s policy with respect to Zimbabwean Exemption Permit holders is schizophrenic.
“ZEP holders have been asked to change the conditions of their stay in South Africa during 2022, even though the permit says that they cannot change the conditions of their stay. The conditions on the permit were impossible to meet, and the respondents themselves renewed them even though they were unrenewable and extended them even though they cannot be extended.”
The mass migration of Zimbabweans to SA commenced in 2001 when that country faced sanctions for its land reform programme, argues Chinyanya. Migration accelerated again after 2008 in response to the country’s political and economic crises.
Zepha says it is embarrassing that the DHA would rely on colonial era immigration laws and exemptions that favoured white people from Commonwealth countries and former Portuguese colonies, but specifically excluded black Africans.
‘Black on black prejudice’
“This is clear black on black prejudice by the ANC government recorded here in SA’s national history, and currently before this Honourable Court,” reads Chinyanya’s affidavit.
The Helen Suzman Foundation (HSF) is also challenging the DHA’s decision to end the ZEP system, and wants the North Gauteng High Court to declare all existing ZEPs valid. This would prevent any ZEP holder from being arrested or deported.
Foundation CEO Nicole Fritz says in her court filings that the Minister of Home Affairs has granted exemptions to qualifying Zimbabweans for more than 13 years under various exemptions schemes, starting with the Dispensation of Zimbabweans Project (DZP) in 2009, which gave legal status to more than 250 000 Zimbabweans who had fled political and economic instability in that country. This scheme was extended and renamed the Zimbabwean Special Permit (ZSP) in 2014 and the ZEP in 2017.
“In reliance on these permits, Zimbabwean nationals have established lives, families, and careers in SA, which have now been placed in jeopardy,” according to Fritz’s affidavit.
There is a risk that tens of thousands of Zimbabweans will be left undocumented from 31 December 2022. They will be unable to obtain alternative visas in time, even if eligible, due to DHA backlogs and delays.
The Zepha case differs in that it wants the court to force Home Affairs to grant ZEP holders SA ID documents. They argue that the ZEP is a permanent residence permit valid for a specific period of time as allowed by the Immigration Act, and that they are therefore entitled to ID documents.
The HSF has also pointed to the fact that few Zimbabweans would qualify for work permits under the critical skills list, nor will they likely succeed in being granted asylum.
One of the reasons cited by Home Affairs for deciding not to extend the ZEP is high unemployment in SA, now at its worst rate since 2008.
“Recently, the country has witnessed violent clashes between foreign nationals and citizens. This is as a result of scarce resources in the country,” says the DHA affidavit.
Chinyanya replies that there is no evidence that ZEP holders are the cause of unemployment in SA, and the cause of xenophobic violence cannot be blamed solely on competition for scarce resources, but on a variety of issues, such as tribalism, ethnic tensions, populism and incitement by political leaders.