ZEP extension doesn't cure defects in deciding to end permit

A version of this article appeared on “News24” on 20 September 2022.

Earlier this month Minister of Home Affairs, Dr Aaron Motsoaledi, extended the Zimbabwe Exemption Permit (ZEP) for a further six months, now to terminate on 30 June 2023. Despite that extension, the legal challenge to the decision to end the ZEP continues.

Before setting out why that must be so, it is worth exploring some of the broader contextual issues. This is not a case which implicates all foreign migrants or even all Zimbabwean migrants who reside in South Africa unlawfully. It concerns only those approximately 178 000 ZEP holders who have lived in South Africa for well over a decade, doing so by scrupulously observing our laws – making formal application, paying fees, obtaining police clearance, providing supporting documentation each and every time this special dispensation system has been renewed.

Migrants are not the cause of our unemployment, poverty, crime or healthcare crisis. But even if there were some truth to this notion, it is hard to see why we would address the issue by targeting that small section of migrants who have built their lives here in perfectly legal fashion.

It is worth recalling that the ZEP, in its original formulation, the Dispensation for Zimbabwe Project, was devised and offered in 2008/9 in the aftermath of horrific election-related violence in Zimbabwe. Hundreds of thousands fled, streaming into South Africa and a recognition that our migrant reception systems would be overwhelmed, that we needed to safely track and record those entering the country in our own security interests and the prohibitive expense of repeated detentions and deportations led to its implementation.

It is worth recalling too that at the time ordinary South Africans showed Zimbabweans remarkable solidarity – trade unions, faith-based communities, civil society responding with extraordinary grace and compassion, even as our official government line was that of the Zimbabwean crisis there was little to see.

Of course, South Africans’ own welfare has plummeted in the intervening fifteen years and we may feel our largesse more constrained. But the rhetoric of some newly arrived political actors insisting they capture South Africans’ sentiments – that Zimbabweans must simply swallow their suffering and not make their problems ours – stands in such sharp contrast to our response then that we must wonder how accurate it is.

There is now some speculation that the reason for this most recent six-month extension is that it is a sop to Zimbabwe’s ruling party, ZANU-PF: delaying the return of those who fled its murderous policies until after the next elections, scheduled fo April 2023, means they cannot vote against ZANU. I find that speculation, assuming as it does such deeply cynical calculation, hard to credit. But it does bring us to this third contextual issue.

The limitations of our human rights system are most glaringly exposed when we talk about migrants. That system is based on the idea of an effective state authority willing to promote and respect the rights of those within its territory and protect the rights of its nationals beyond its territory. The Zimbabwean government, composed of the ruling ZANU-PF, is a gross distortion of that idea. Its policies and conduct put huge numbers of Zimbabweans to flight and the idea that it would now genuinely act to secure their interests is fanciful. ZEP holders turn in the wind: facing a receiving state that says “time’s up, you must go”, and a sending state that essentially chased them away. It is that liminal condition that makes them so vulnerable.

They are precisely among those categories to which former Chief Justice Arthur Chaskalson referred when he explained that the purpose of judicial review – the type of challenge now being brought against the ZEP termination – “was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be sure that our own rights will be protected.”

And yet approaching the courts in this matter has elicited searingly sharp, scornful response from government. Motsoaledi has accused us, a party bringing the challenge, of seeking to “blackmail the nation” and warned darkly of a “dictatorship of some NGOs” who “seek the dislodgement of the Government of the day.” But court process, of course, is precisely not an avenue by which to secure dictatorship or dislodgement: it is the means by which we peacefully settle disputes in a constitutional democracy.

The extension of the ZEP to 30 June 2023 while potentially holding out some relief to individual ZEP holders does not, in our view, cure the fundamental defects in the Minister’s decision to end the permit and so the court action continues.

The primary defect, not remedied by the extension, is that these decisions have been taken without any form of public consultation whatsoever – no prior notice, no calls for representations from affected ZEP holders, no notice and comment process, no public inquiries and no meaningful engagement with civil society. This flies in the face of the most basic tenets of procedural fairness and ensures an uninformed decision.

The extension also fails to demonstrate any more compelling reasons in support of the decision to end the ZEP than was the case before the extension was granted and, without more, it doesn’t genuinely offer ZEP holders any greater an opportunity to migrate to other visas or secure individual waivers and exemptions and so regularise their status.

Some last points need to be made about the motivation for this legal challenge. It is brought unapologetically in the interests of ZEP holders who have lived in South Africa entirely lawfully for well over a decade and have contributed to this country in myriad ways. At the very least, they deserve to be heard and consulted ahead of any potential decision imposing such magnitude of harm on them. How much more vulnerable are all of us South Africans, if decisions having such enormously prejudicial impact, can be made without first consulting those directly impacted.

But this legal challenge is also brought in the interests of South Africans in a more fundamental way. Very little reason has been proffered by the Department for the decision to terminate the ZEP. In fact, in an about-turn, it now says that it made no decision, it simply allowed the ZEP to lapse and so essentially it needs no reason. But without reason, without hard data supporting this decision, we have no way of assessing whether it is net positive or net negative for South Africa.

Do we know how many ZEP-holders run small businesses employing South Africans? How many pay tax and so contribute to revenue collection and service provision? How many teach South African children Maths and Science? How many pay rent contributing to South African livelihoods?

The Minister has vaguely gestured to unemployment and crime at different points as some sort of justification. But there’s no data to support such reasons and in their legal papers the department appears wisely to have abandoned such explanation.

Bad decisions taken by government – decisions without considered reason and deliberation – impact us negatively even if we are not the direct targets. They consume finite resources, human and financial.

But in South Africa right now, confronted as we are by huge, seemingly overwhelming challenges, bad decisions – made ostensibly in the service of addressing very real problems – distract our focus and set back our chances for real resolution. Bad decisions have us hunting butterflies when we should be chasing bears.

- Nicole Fritz is the Director of the Helen Suzman Foundation

Find this article on News24’s website here