BY SYDNEY KAWADZA
A SOUTH AFRICAN Constitutional Court ruling late last year could provide some reprieve for Zimbabweans battling possible deportation after the expiry of their special exemption permits last month.
Nearly 200 000 Zimbabweans living in South Africa on a Zimbabwe Exemption Permit (ZEP) have been given a 12-month grace period to regularise their papers or risk detention and deportation. This followed a cabinet resolution not to renew the permits when they expired last month.
The ConCourt ruling in a case of an Ethiopian national, Desta Abore, who was detained awaiting deportation, states that refugees and asylum seekers can apply for permits and stay in South Africa pending the outcome of their applications.
According to reports from South Africa, the ConCourt decision rescued Abore from unlawful detention and brought the much-needed clarity to the application of the new amendments to the Refugees Act in relation to asylum applications.
Various legal experts told the NewsDay Weekender that Zimbabweans in South Africa could take advantage of the ConCourt ruling to extend their stay in that country.
In an interview, a lawyer representing former special permit holders who are fighting for permanent residency in South Africa, Simba Chitando, hailed the ConCourt judgment.
“The judgment sets a good precedent in support of the rights of migrants generally, even though it does not specifically deal with the rights of ZEP holders. It speaks to the position of the courts, which appears positive for migrants in the republic,” he said
An attorney at Nonyane Inc in Pretoria, Thabang Nonyane, concurred, adding that the judgment gave some reprieve to Zimbabweans living in the neighbouring country.
“In simple terms, the implication of the judgment is that once a foreigner has declared his or her intention to apply for an asylum or refugee status, he or she must be given an opportunity to do so by means of being issued a temporary permit.
“The permit should be valid until the Department of Home Affairs has made a determination to the asylum or refugee application. Pending the determination by Department of Home Affairs, the foreigner may not be arrested,” Nonyane said.
Khulekani Moyo of Wits University Law School said: “Regulation 7 of the new regulations to the Refugees Act 130 of 1998 provides that a person must declare his or her intention to apply for asylum at a port of entry before entering the republic and must be issued with an asylum transit visa which is valid for five days.”
“An applicant for asylum must, in terms of Regulation 8, show good cause why he or she is not in possession of an asylum transit visa before he or she is allowed to make an application for asylum – good cause which is required to be shown refers to the reasons that must be given on why the applicant for asylum does not have an asylum transit visa,” he said.
Moyo, however, said Regulation 7 did not assist asylum seekers who did not declare such an intention at a port of entry and before entering South Africa.
“It also does not assist asylum seekers who do not enter the Republic through an official border post. Many do not, given their precarious position as illegal foreigners fleeing their home countries due to a well-founded fear of persecution,” he said.
Abore reportedly entered South Africa illegally through Zimbabwe in December 2019, telling the court that he escaped persecution in his home country given his involvement in opposition politics.
He was arrested in July 2020 in Eshowe, northern KwaZulu-Natal, and was convicted and sentenced by the local magistrate’s court to 50 days imprisonment with an option to pay a fine of R1 500 for entering the country unlawfully. Despite paying the fine, Abore served his prison sentence and his detention, which was supposed to end on August 25 2020, continued beyond that date staying in prison for more than a year.
In February last year, the Department of Home Affairs applied for a warrant extending Abore’s detention for purposes of deporting him. Aggrieved by this, Abore approached the High Court to stay his deportation.