South Africa heading towards a ‘human catastrophe’ with Zimbabwe permits, court hears

Unless the court intervened, South Africa was “sleepwalking towards a human catastrophe of monumental proportions”, said Tembeka Ngcukaitobi SC, counsel for the Zimbabwe Immigration Federation in court on Thursday. 

The court was hearing its third day of argument about the Zimbabwe Exemption Permit (ZEP) regime — due to expire at the end of June. The special permits allow about 178,000 Zimbabweans to lawfully live in South Africa. In November 2021, cabinet announced that the government would “no longer issue extensions to the Zimbabwean special dispensation” and gave holders a year’s “grace” to get their immigration statuses in order. The year’s grace was then extended for another six months. 

The Zimbabwe special permits were first introduced in 2009 in response to a political and economic crisis in Zimbabwe that caused an exodus into South Africa. The regime was twice extended for the original holders — in 2014 and 2017. But the government says it was always clear that the permits were temporary.    

In court on Thursday Ngcukaitobi argued that the decision by home affairs minister Aaron Motsoaledi on the special permits was “arbitrary” and he had acted outside his legal powers.  

The precise legal nature of the decision is a fiercely contested issue in the case, with the government arguing that the ZEPs were always temporary and had ended “through the effluxion of time”.  

The special circumstances which justified the repeated decisions by the minister to extend the dispensation for Zimbabwean nationals still exist.

—  Tembeka Ngcukaitobi SC, counsel for the Zimbabwe Immigration Federation

Ngcukaitobi said the government “equivocated” on what was the statutory source of its decision, but the facts were very clear: both Motsoaledi and his DG said the minister had taken a decision not to extend the ZEP permits under section 32(2)(b) of the Immigration Act.  

But by doing so, he had acted outside his powers, said Ngcukaitobi, because that section only allows a minister to grant exemptions, not to decide on whether to extend them.  

But even if his decision was to seen as a withdrawal of the exemption — allowed under a different section, section 32(2)(d) — the minister was still acting outside his powers, he said. This was because exemptions could only be withdrawn under section 32(2)(d) of the act if there was “good cause” to do so.     

Ngcukaitobi argued that, under section 32(2)(b), exemptions can be granted “when special circumstances exist”. If the ZEP regime was put in place because of a political and economic crisis in Zimbabwe, to justify its termination, that situation had to have changed.   

“The special circumstances which justified the repeated decisions by the minister to extend the dispensation for Zimbabwean nationals still exist,” he said.

He said the government should have put evidence before the court that the situation in Zimbabwe had improved. That evidence “must be assessed on an objective basis”.

“It cannot be up to the opinion, the whim, of the government to say, ‘I think the situation has improved’ and therefore everyone in South Africa must be told to believe, even if the evidence shows the contrary,” he said. 

His clients had put independent reports before the court that showed a “depressing” picture about the situation on the ground in Zimbabwe — including increased political repression, an ongoing human rights crisis and the fact that, at the end of 2020, 7-million Zimbabweans were in need of food aid.   

Another reason from the government for ending the special permits was that the department of home affairs had a constrained budget, said Ngcukaitobi. But one of the reasons the special permits were initially introduced was to alleviate the burden on the department of home affairs.  

Now the department was “instructing tens of thousands of people to go to their offices” to apply for other visas or waivers, he said. This showed how arbitrary the decision was, he said. 

Ngcukaitobi said, on July 1, the holders of the permits would “overnight” be rendered illegal immigrants in South Africa. This meant that they would be liable to forced deportation and arrest.  

He said what the world saw under Idi Amin with the deportation of its Indian minority in 1972 “will appear to be a picnic compared to what’s coming on the 1st of July”. 

Counsel for the government, Sean Rosenberg SC, argued that Motsoaledi’s decision was not to withdraw permits, which had come to an end through the effluxion of time and which permit-holders always knew would end. The decision made by the minister was to extend the permits by a year, then by a further six months.   

Rosenberg said the Zimbabwe Immigration Federation’s argument that the minister was acting outside his powers was “misconceived” because it had wrongly described the minister’s decision.  

He argued the minister’s assessment of the political situation in Zimbabwe was “absolutely a question for the minister, to attach appropriate weight in his discretion”. He said there were competing reports before court about the rates of unemployment and economic growth in Zimbabwe.  

“That is a question for the minister to weigh up among a range of other relevant considerations ... The minister was quite clearly of the view that, in the context of this matter, the situation in Zimbabwe has improved sufficiently,” he said. 

He said the comparison to Uganda in 1972 was inappropriate because permit holders had an opportunity to make applications to regularise their status and a number had already made these and others could still do so.   

But Ngcukaitobi said, according to the court papers, about 8,000 applications had been received. This was a drop in the ocean and did not address the potential crisis on July 1, he said. The court papers did not say what the status of those applications was or whether they would be approved. It was “cold comfort” and did not dispense with the need for an interim interdict.