The African proverb, “When elephants fight, it is the grass that suffers,” perhaps best describes the effects of the outcome of the fight between the ZEP holders and the Department of Home Affairs. Yesterday, the High Court handed down its judgment in the case brought by the Helen Suzman Foundation. The case had been brought before the court in response to the government’s decision in November 2021 not to continue with a special dispensation program for Zimbabweans. These permits had been in place since 2009 and granted a group of over 177,000 rights to reside in the Republic. In its submissions, the Helen Suzman Foundation argued that they did not seek to challenge the decision itself but rather the manner in which the decision was made.

The decision was successfully challenged on four grounds: it was procedurally unfair and irrational and made without prior consultation with the affected persons; the decision breached the constitutional rights of the ZEP holders and their children; it had been taken without any regard to the impact on the ZEP holders; and it reflected material errors of fact as to the present conditions in Zimbabwe and was therefore irrational. The court also sent the decision back to the Minister for reconsideration and granted a 12-month extension to the ZEP holders from the date of the order.

The decision has been received with mixed reactions, with the ZEP holders being elated. However, the reaction from the greater South African citizenry has been one of frustration and anger. Ultimately, the impact of this issue has been to negatively affect the objectives regarding the management of regional migration in a manner that ensures a balance between the economic interests of the local citizenry and the regional role that South Africa plays in SADC and the continent at large. A consensus between these two competing objectives is central to the government’s policy position on migration, as articulated in the white paper on International Migration.

In my view, this was a missed opportunity to implement some of the progressive suggestions of the white paper, which aim at combating corruption while reducing the trade in false documentation that has become pervasive, limiting the abuse of migrants in the labour market and the resultant downward pressure on salaries for locals and foreigners. Ultimately, all these objectives would lead to a more cohesive society where citizens no longer assume that all migrants from Africa are irregular and undesirable, a sentiment that has been growing in recent days.

Much has been said about whether the decision was reviewable in the first place, as it had the hallmarks of a policy decision rather than an administrative decision. There has to be a distinction between the power of elected officials to make policy and the administrative actions taken in executing that policy. This was central to the case before the court, which the court found to be administrative in nature and hence exercised its powers in terms of PAJA to review and set it aside. I believe this was not the correct question to have been brought before the court.

The nature of the ZEP and its predecessors is one that has never been scrutinized, and answering the question, “What is the ZEP?” would have resulted in a better outcome for all parties concerned. Is it a waiver or a permit? In my view, the ZEP and other special permits are exemptions contemplated in section 31(2)(c) of the Immigration Act (a waiver), rather than Permanent residence exemptions contemplated in terms of section 31(2)(b) of the Act. If it had been the latter, then there would have been no need to impose conditions limiting the ZEP holder from either working, studying, or running a business. If indeed the ZEP was a waiver, then the next question would have been, was it rational to limit the rights of ZEP holder from applying for permanent residence in the ordinary course? Waivers are a daily part of applications that seek to allow the applicant the opportunity to submit an application without the need to comply with one or more requirements of that visa. If a person who was issued with a general work visa after being granted a waiver is allowed to apply for permanent residence after 5 years, why then would it not be possible for a ZEP permit holder to do the same?

These questions are central to determining what rights the holders of these permits have in law and are more relevant given that waiting in the wings are the holders of the Lesotho Special Permit, whose visas are also expiring in December 2023. It is also relevant because, aside from the Zimbabweans who still remain in a state of limbo as to their future beyond June 2024, there are the Angolans whose situation is very similar but has been unresolved since 2018. The law is meant to provide certainty to people, but the situation of these special permits has been far from providing such.

Fortunately, the solution to this issue lies in the very same white paper on international migration. The government acknowledged in this policy paper that managing economic migration from SADC was the most challenging policy area to address and to build consensus around a clear policy and strategy, despite the fact that South Africa today is a product of historical labour migration within the region. Our diverse society was born out of the historical migration patterns flowing into mining, agriculture, hospitality, construction, and domestic work. The song “Coal Train” by the late Hugh Masekela aptly captured this phenomenon. In the post-colonial world, the country has surged to become the biggest and more advanced economy in the region, which has ensured that the resultant economic pull factors are quite strong. There will always be a strong migration flow between South Africa and its neighbours, with the result being competition over the increasingly scarce resources and opportunities, which have resulted in periodic flare-ups of violence against foreigners.

The white paper made three specific policy interventions to address this complex challenge. Firstly, the regularization of a program modelled along the lines of the ZSP, LSP, and ACP aimed at addressing irregular and illegal immigration. Arguably, these interventions have been able to achieve this goal, though not fully. The second intervention is to introduce an expanded visa regime to cater to some economic migration from the SADC. In this regard, a quota-based system is proposed for piloting three visa types for SADC nationals. The third intervention would be stronger enforcement of immigration and labour laws, which is critical to ensure that citizens are not disadvantaged by employers paying lower wages to economic migrants. Irregular migration is expected to decrease if employers’ compliance with immigration and labour law increases, but also if more pathways are opened for those semi-skilled individuals who dominate the ZEP demographic, there would be no need for a person to illegally come to the republic.

When implemented, these interventions are expected to relieve pressure on the asylum seeker management system, reduce downward pressure on wages and employment conditions in the lower end of the economy where competition is rife, which in turn should result in improved social cohesion. The current state of play, however, is not beneficial to anyone. It leaves the affected migrants in a state of extended uncertainty as they do not have any visas or a pathway to follow. It leaves the citizens feeling that the government and courts are not taking their grievances seriously, and it leaves the government in the unenviable position of having to manage the anti-foreigner sentiment. This battle may have been won, but the war against decaying social cohesion may well have been lost, and as we know, in any war, there are no winners, only widows

Munyaradzi Nkomo

Managing Director