Source: The Herald – Breaking news.
Wallace Ruzvidzo and Thupeyo Muleya
A FULL bench of the Pretoria High Court in South Africa yesterday ruled as “unlawful, unconstitutional and invalid” the termination of the Zimbabwe Exemption Permits (ZEPs) by the country’s Department of Home Affairs.
The Pretoria High Court consequently directed the Minister of Home Affairs, Dr Aaron Motsoaledi, to reconsider the issue “following a fair process”.
Pretoria High Court judges Collen Collis, Gcina Malindi and Anathi Motha made the landmark ruling.
This was after the Helen Suzman Foundation (HSF) successfully applied to interdict the Department of Home Affairs from arresting, deporting and detaining any person who does not have a valid ZEP.
Pending the outcome of that process, the ZEP will now remain valid until the end of June 2024 and holders have been accorded protection from arrest and deportation.
Earlier this month, South Africa extended the validity of the ZEP by six months to December 31 this year, to allow affected Zimbabwean nationals to apply for one or more other visas provided for in the Immigration Act.
The permits had been due to expire tomorrow and a number of Zimbabweans living in the neighbouring country had expressed interest in Government’s assistance in facilitating their seamless re-integration back home.
Over 178 000 Zimbabweans are holders of the ZEP. The High Court judgment said ZEP holders would not be subjected to arrest or deportation.
“Pending the conclusion of a fair process and the First Respondent’s further decision within 12 months, it is directed that: existing ZEPs shall be deemed to remain valid for the next 12 months.
“ZEP-holders will continue to enjoy the protections afforded by Immigration Directive 1 of 2021, namely that: ‘1. No holder of the exemption may be arrested, ordered to depart or be detained for purposes of deportation or deported in terms of the section 34 of the Immigration Act for any reason related to him or her not having any valid exemption certificate (ie permit label/sticker) in his or her passport’,” reads part of the judgement.
The High Court said it was imperative that due diligence is carried out before a decision is made by the Department of Home Affairs as the ZEP had been the basis upon which thousands had built their lives, homes, families and businesses.
“It concerns the rights of over 178 000 holders of Zimbabwean Exemption Permits, which are due to expire on June 30, 2023. On September 2, 2022, the minister decided to terminate the ZEP programme and to refuse any further exemptions.
“Central to this application, therefore, is the legality of the decision to terminate the rights extended to 178 000 Zimbabwean Exemption Permit holders, thereby bringing an end to the basis on which a multitude of these people have built their lives, homes, families and businesses in South Africa.
“This is thus a case of considerable public significance, not only to all ZEP holders but to the Department of Home Affairs as well,” reads the judgment.
The initial termination, said the High Court, had thus placed ZEP holders in jeopardy and held profound consequences.
“It is further common cause that the decision so taken by the minister to terminate the ZEP programme, was taken without any prior notice to or consultation with ZEP holders and the public; secondly, that an invitation for representations from ZEP holders was only issued in January 2022, this after the minister’s decision had been announced,” said the three judges.
In 2021, South Africa’s cabinet resolved not to further extend the permits.
It was announced that the permit holders should migrate to mainstream permits and that those who failed to make it should depart by June 30 this year.
However, the Home Affairs Ministry extended the grace period to December 31 this year.
Following the announcement, several groups representing migrants, including the Hellen Suzman Foundation, the Consortium for Refugees and Migrants in South Africa and the Zimbabwe Immigration Federation, took the South African Government to court.
A Zimbabwean lawyer based in South Africa, Advocate Simba Chitando, also made a similar application.
He argued that the resolution by cabinet would negatively affect the migrants who had been in South Africa for over a decade.
In addition, he wanted the decision by Dr Motsoaledi and his subordinates to be set aside and allow the ZEP holders more time to fix their documents.
However, a decision is yet to be made with regards to Adv Chitando’s application.
In their ruling yesterday, the three judges said the Home Affairs Department’s decision was unlawful and invalid.
“The first respondent’s decision to terminate the Zimbabwe Exemption Permits (ZEP), to grant the ZEP holders limited extension of the ZEP of only 12 months, and to refuse further extension beyond June 30 2023 as communicated in directive 1 of 2021, as published as GN 1666 in Government Gazette 4527 of January 7 and September 2 2022 and the accompanying press statement is declared unconstitutional, unlawful and invalid,” read part of the ruling.
“The first respondent referred to in paragraph 147 is reviewed and set aside.”
The judges also directed the Home Affairs Minister to reconsider his decision following a fair process that complies with the law.
Further to that, the ZEP holders will continue to enjoy the protections afforded by Immigration Directive 1 of 2021.
These include that they cannot be detained, arrested or deported, depart and enter due to the state of their immigration status.
“No holder of the exemption should be required to produce a valid exemption certificate or authorisation letter to be in South Africa,” says the ruling.
“First respondent and any other parties opposing the application, are directed to pay the costs, jointly, severally, the one paying the other to be absolved, including the costs of the two counsel, where so employed.”
Zimbabwe Community SA spokesperson, Mr Bongani Mkwananzi, said they were still studying the full ruling.
He said the decision was a relief to many ZEP holders.
“We welcome the ruling. It is very positive. We are still studying it to get all the implications with regards to those who had started complying with directive 1 of 2022,” he said.
Another academic based in South Africa, Dr Clement Chipenda, said the High Court ruling was a relief to many Zimbabweans who were anxious about their fate after June 30.
He said the ruling gives enough time to migrants to put their documents in order with less pressure.
Dr Chipenda those with children in school were also relieved because it would have been difficult to move them in the middle of an academic year.
A Zimbabwean social worker , Miss Nobuhle Ajiti, said: “This is a welcome development considering that some ZEP holders had been experiencing challenges accessing medical attention. This was affecting mainly those in migrant dominated communities.”
She said some were even having challenges with schools and banks constantly reviewing their documents.
Miss Ajiti said domestic workers had been the worst affected because they were being turned away from some gated communities due to the state of their permits.
A teacher, Ms Memory Sibanda, said she had been under pressure to move her property in limited time.
“This is an important relief for us considering that we have been too anxious. Imagine some people had to sell their assets at giveaway prices so that they would be able to move to Zimbabwe. In some instances, bank accounts were being closed,” she said.
According to the Department of Immigration, they have since the beginning of June, been processing at least 200 ZEP holders returning home daily.
Government has also activated its various agencies to facilitate the seamless return of Zimbabweans including waiving import duty payments on all the immigrants’ belongings.
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