The Zimbabwe Exemption Permit (ZEP) Holders Association and non-profit organisation African Amity have brought an urgent application before the High Court in Johannesburg to overturn the decision by the director-general of Home Affairs not to renew permits granted to more than 250 000 Zimbabweans in SA.
The permits expire at the end of December 2021, after which the Department of Home Affairs has instructed them to apply for “mainstream visas” and to ensure that their applications comply with the provisions and requirements of the Immigration Act and its accompanying regulations.
The Home Affairs directive goes on to advise companies, employers, learning institutions and banks to discontinue services to those in possession of a ZEP expiring on December 31, unless they submit proof of their application for a mainstream visa.
Emma Dimairho, deposing for African Amity, says this requirement is impossible to meet, “unreasonable, unfair, cruel and leaves thousands of ZEP holders in jeopardy of losing their jobs” as well as financial services. The decision by Home Affairs will cause irreparable harm unless the court intervenes on an urgent basis, says the court application.
The case will be heard on an urgent basis on Tuesday, December 14. Also cited as respondents, who are opposing the matter, are President Cyril Ramaphosa, the minister of Home Affairs and the cabinet.
ZEPs and its predecessors have been in existence since 2009 and were an attempt to regularise the residence status of those Zimbabweans residing illegally in SA due to political and economic instability at home.
The ZEP Holders Association launched a separate case in October to have the Gauteng High Court declare them permanent residents, as their existing permits are due to expire at the end of this year.
Neither the minister nor the director-general of Home Affairs filed opposing affidavits in this matter, though they did file a notice of intention to oppose on November 8.
Two weeks later, on November 24, Home Affairs decided not to renew the ZEP permit.
Police clearance hurdle
Dimairho explains that it is impossible for permit holders to comply with the government’s latest directive and remain legal in SA, as they would have to obtain police clearances from both SA and Zimbabwe. In Zimbabwe, this process typically takes six weeks.
“The Zimbabwean police clearance can only be obtained in Zimbabwe, and requires fingerprints obtained there.
“No ZEP holder, currently in South Africa, can obtain the police clearance,” says Dimairho’s affidavit.
“The 29 November 2021 decision for this reason alone cannot be complied with by many ZEP holders currently in the Republic.”
Many ZEP holders are either in Zimbabwe or planning to go home for the festive season. The 10-day quarantine period in force in Zimbabwe prevents them from obtaining police clearance before the expiry of the ZEP at the end of December.
Rock and a hard place
Home Affairs says it will only consider applications for permanent residence from January 2022.
A further problem for ZEP holders is that Home Affairs has not explained what it means by “mainstream visas” or whether permanent residence permits fall under this category.
The effect of the latest directive by Home Affairs is to prevent ZEP holders from making applications for permanent residence before December 31. “The intention by the respondents is to herd ZEP holders to apply for any visa or permit, beside permanent residence,” says the court application.
“According to the 29 November 2021 directive from [the director-general of Home Affairs], ZEP holders are expected to consider their legal options provided for by the Immigration Act and the Immigration Regulations, make a decision that impacts their future and that of their families, and then make an informed decision, all in a matter of weeks, at the risk of potential deportation if the direction they elect is wrong.
“This is indefensible. It is absurd. It is cruel. It is inhuman. It is punitive in nature. It is irrational, unreasonable, and unfair.”
Advocate Simba Chitando, who is representing the applicants in the case, says the unreasonable time limits imposed on ZEP holders to apply for alternative visas also makes no allowance for the funds required to do this.
“Many have had their papers destroyed during several incidents of xenophobic violence, and some are working in remote areas and are completely unaware of the directive issued by Home Affairs on 29 November.”
“[The Home Affairs] decision effectively herds 180 000 human beings, together with indirectly affected relatives, arbitrarily, with a few weeks’ notice, to a legal regime that changes their lives, in the most unfriendly and inhumane manner, knowing that the decision they take, if unsuccessful, could lead to the loss of jobs, break up of families, financial ruin, and even their deportation,” says Dimairho.
The decision by Home Affairs has plunged ZEP holders into a state of anxiety as they face the very real possibility of losing their jobs, having their bank accounts closed and being deported.
The ZEP Holders Association is asking the court to set aside the November 29 directive by Home Affairs and the cabinet.