Zimbabwean Exemption Permit: SA Minister acted outside his powers, court told

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By Ground Up

PRETORIA – The Minister of Home Affairs had acted outside his powers in deciding to discontinue the Zimbabwean Exemption Permit (ZEP) system in 2021, Advocate Tembeka Ngcukaitobi, told the Pretoria High Court on Thursday.

Ngcukaitobi is counsel for the Zimbabwe Immigrants Forum (ZIF), which represents about 1,000 ZEP holders.

“We are sleepwalking into a catastrophe of monumental proportions,” he told a full bench of the court.

The decision to discontinue the ZEP system, which allows Zimbabweans to live, work and study in SA, means 178,000 ZEP holders and their families will be declared illegal foreigners on 1 July 2023, the day after the ZEP system will be deemed to have come to an end.

The ZIF is asking the court for an interim interdict to prevent the ZEP system ending on 30 June 2023, so that ZEP holders will not be at risk of being declared illegal foreigners.

There was a chance of the ZIF case being settled with Home Affairs, but this awaited confirmation from the director-general and minister, said Ngcukaitobi. ZEP holders have been advised by the Department of Home Affairs (DHA) to apply for alternative visas or waivers by 30 June 2023, though Ngcukaitobi pointed out that few will qualify for visas in terms of the government’s Critical Skills List.

In making the decision to terminate the ZEP programme, the minister had acted outside of his powers, said Ngcukaitobi. “We say the decision not to extend was bound by the Constitution, and has to pass the (legal) threshold of rationality. It’s also an infringement of the Bill of Rights.”

The ZIF argued that the termination decision was arbitrary and lacking in rationality.

If the government wanted to terminate the programme, it must demonstrate that this decision is linked to a positive change in the economic and political situation in Zimbabwe that gave birth to the exemption programme in the first place, argued Ngcukaitobi. The minister had to exercise his power on an objective basis, based on facts, not on a whim.

Ngcukaitobi then attacked the “random assemblage of facts” that supported the minister’s decision.

Reports from human rights organisations such as Amnesty International and Human Rights Watch showed conditions in Zimbabwe had not improved, as claimed by DHA, he said. Amnesty International in 2021 reported a deteriorating human rights situation in the country, accompanied by government hostility to opposition activists and journalists, unlawful killings by security forces, an under-funded health care system, with many people at risk of becoming stateless. There are ongoing shortages of cash, an overhang of debt, and seven million Zimbabweans are reportedly in need of food aid. The reported unemployment rate of 41% in 2021 is little changed from 2010, he said.

Contrary to the assurances of the minister, conditions are not getting better in Zimbabwe; they are getting worse, said Ngcukaitobi. “The (minister’s) decision is arbitrary and not supported by facts. This situation will be made worse by terminating the ZEP programme.”

The ZIF is asking the court to grant an interim order staying the minister’s decision to terminate the programme on 30 June 2023, pending a final decision by the court. Without an interim order that allows Zimbabweans to stay in South Africa while the judiciary contemplates a final decision in the matter, thousands of ZEP holders and their families could be deported, argued the ZIF. Any final decision in their favour after 30 June 2023, when many could have been deported, would be pointless.

In response, Advocate Sean Rosenberg, representing the minister, said what the minister was confronted with on 20 September 2021 (when the announcement of the lapsing of the ZEP system was announced), was whether to extend the programme at all and, if so, for how long. In the end he exercised his legal rights to extend the deadline for expiry of the ZEP system for a period of 18 months.

There was no termination decision, other than by the passage of time, said Rosenberg. Asked by Judge Gcina Malindi whether the minister should have consulted affected parties about the ending of the ZEP system, Rosenberg said no rights had been taken away from ZEP holders through the expiry of the ZEP system. ZIF’s claim that economic and political conditions had not improved in Zimbabwe was contested by the minister, who had to make a ‘weighted’ decision in this regard, he added.

The case resumes on Friday, when the Zimbabwean Exemption Permit Holders Association (ZEPHA) will ask the court to grant ZEP holders permanent residence in South Africa. “ZEPHA believes that ZEP holders have lived in South Africa long enough to become residents and have taken the view that the continuous extensions are unfairly expensive and unlawful. We have waited a long time for this hearing, and hope for a favourable decision from the Court,” Zepha legal counsel, Advocate Simba Chitando, told Groundup.