The prolonged government of national unity (GNU) talks and establishment of a cabinet have left Zimbabweans in limbo as it is not clear what the next move regarding the Zimbabwean Exemption Permits (ZEP) will be.
The Constitutional Court dismissed home affairs minister Aaron Motsoaledi’s bid last week to appeal the Pretoria high court ruling that found that the scrapping of the ZEP was procedurally unfair and violated the constitutional rights of ZEP holders.
This means Motsoaledi, or the new incoming home affairs minister, will have to go back to the high court ruling which ordered that proper and meaningful consultations be done with the affected permit holders, with the country having 178,000 ZEP holders. In the meantime, the ZEP remains effective until November 29 2025.
But with the election outcomes indicating a GNU future, the ruling now leaves Zimbabwean nationals in an uncertain position, said advocate Simba Chitando.
Chitando had joined the court application with the Helen Suzman Foundation, which initially legally challenged the ZEP cancellation.
“Unfortunately Zimbabweans in SA remain in a precarious position. They do not know what decisions the executive could make, especially considering the apparent post-election deadlock. The ANC and the Patriotic Alliance want ZEP holders to leave, but the DA is happy that they stay — and all three are in the coalition,” he said.
As for the consultation process, the minister has the discretion on what it would entail, explained former Helen Suzman Foundation executive Nicole Fritz. She said the process should afford those who will be harshly affected by any decision made to make representations.
ZEP holders have lawfully lived in SA long enough, in terms of the Immigration Act, to decide whether they want to become residents, or return to Zimbabwe. It is a decision for the respective individuals and not for politicians
— Advocate Simba Chitando
“Ultimately, what the judgment demands is a key element of the GNU’s statement of intent: evidence-backed policy and decision-making,” she said.
However, should the incoming home affairs minister decide to end the ZEP, this would have to include public participation, Chitando said.
This would involve considering the views of interested and affected parties such as banks, schools, employers and the ZEP holders themselves.
“Even that is not an exhaustive list. My view on the issue has been consistent. ZEP holders have lawfully lived in SA long enough, in terms of the Immigration Act, to decide whether they want to become residents, or return to Zimbabwe. It is a decision for the respective individuals and not for politicians,” Chitando said.
The National Employers’ Association of SA (Neasa), which sees the judgment as a positive development for employees and employers, urged ZEP holders to obtain alternative visas as soon as they can.
“Although these visa applications may take up to a year to be processed, especially in cases where waiver applications are required before application for a general work visa, Neasa has received confirmation from immigration specialists that most waiver applications are being granted,” the association said.
“The approved waiver applications will allow these ZEP holders to submit their applications for general work visas, which can be issued for up to five years.”
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