On November 25, the minister in the presidency, Mondli Gungubele, announced the government’s decision to not re-issue the Zimbabwe Exemption Permit (ZEP) after December 31. Permit holders will have a grace period of 12 months to apply for other permits.
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In December, the Department of Home Affairs (DHA) released a notice Withdrawal of Immigration Directive on the ZEP but with no further details.
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Kaajal Ramjathan-Keogh, a South African lawyer and the Director of International Commission of Jurists Africa Regional Programme answered some FAQs about the permit.
Q: What other permits are appropriate for ZEP holders?
A: This would depend on the education and skills of the individual permit holders. If they do not have any qualifications or skills, this would place them in a difficult position. If these individuals are employed as domestic workers, labourers, construction workers, gardeners, uber drivers etc. there are no permits in the Immigration Act for which they would be eligible.
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Q: From the conditions endorsed on the ZEP permit that the holder of such permit dispensation does not have (2) … the right to apply for permanent residence irrespective of the period of stay in the RSA; (4) … cannot change conditions of his/her permit in RSA. Can ZEP holders apply for permanent residence after December 31 and during the 12-month period?
A: According to the conditions of the ZEP this is not possible. They may as a group however file a legal challenge to this condition to seek the court’s intervention on whether they may apply for permanent residence.
Q: If ZEP permit holders wish to pursue any mainstream temporary residence visas and ultimately permanent residence after December 31 and during the 12-month period, what would be the procedure?
A: They would need to apply for a permit for which they are eligible e.g. student permit if they are studying. They would then need to follow the immigration laws in respect of any applications for permanent residence. Currently this is not an avenue which is open to ZEP holders.
Q: The Ministerial Waiver granted to foreign students who have graduated at a South African tertiary institution towards areas of critical skills to apply for permanent residence is limited to the areas listed in the Critical Skills List. The List is non inclusive of many sectors and within the Business studies sector Marketing and Advertising have been excluded. What are the non inclusive sectors and which critical skills are eligible for foreign students who have graduated at a South African tertiary institution to apply for permanent residence?
A: These critical skills are mainly in the health and education sectors- doctors, nurses, teachers, health professionals etc. but also in sectors like engineering and includes skills such as welders.
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Q: Do South African banks, academic institutions and companies have the right to freeze your account, prohibit you from your academics or terminate your employment contract after December 31 and during the 12-month period?
A: Banks can and will freeze the accounts of any persons who do not hold a regular immigration status in SA. This has happened repeatedly before. There needs to be an undertaking from the Dept of Home Affairs to provide assistance to ZEP holders in this respect. The requirements currently are that former ZEP holders once they have applied for a new permit can provide the proof of application to banks, academic institutions etc. in order to maintain their employment or maintain access to their bank account.
Q: Can ZEP permit holders with children born and residing in South Africa apply for an appropriate permit or permanent residence?
A: Children born in SA to foreign parents take on the citizenship of their parents. The fact of being born in South Africa does not confer any rights to residence or citizenship. This does not confer any rights of residence to parents or children.
Q: Are birth certificates of children born in South Africa with Zimbabwean parents (legal or illegal) enough for them to enrol for school in South Africa?
A: Yes this should be sufficient for enrolment. But a residence permit will need to be provided at some stage. Proof of application for another permit should also suffice for schools.
Q: Last but not least, is there any hope for ZEP permit holders, Zimbabwean asylum seekers and refugees in South Africa? What’s going to happen to those who don’t have critical skills but normal everyday average jobs? What happens to those who apply for appropriate permits but get rejected? What protection does ZEP permit holders, Zimbabwean asylum seekers and refugees have from xenophobia attacks and their human rights?
A: This is difficult to answer. The situation looks bleak. South Africa has not considered the political, economic or humanitarian situation in Zimbabwe in taking the decision not to renew the ZEP. This situation has not changed since 2008 when the initial decision to issue special permits was taken. It is therefore difficult to understand the logic of refusing to renew the permits when the original circumstances remain very much the same.
South Africa has further failed in its various attempts to intervene in Zimbabwe to promote democracy, human rights and respect for the rule of law. This is also a factor which should have been considered in respect of continued access to the permits.
This decision by the South African cabinet is unconscionable. It appears to have been taken specifically as a reaction to the ANC’s very poor showing at the recent local government elections and part of preparations for the next national elections.
Immigration issues were at the forefront of campaigning during the local government elections and appeared to be a rallying point for many political parties who have fared rather well in the elections. It is shameful for the SA government to be taking this position against a group which remains politically powerless and vulnerable in this country.
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