Only 6 000 of the approximately 178 000 holders of Zimbabwe Exemption Permits (ZEPs) in South Africa have made their representations to that country’s Home Affairs Ministry as to why they should continue staying there after their permits expire.
This was disclosed in an answering affidavit made by South Africa’s Minister of Home Affairs, Aaron Motsoaledi and Director General of the Department of Home Affairs, Livhuwani Tommy Makhode who were cited as the first and second respondents by the Helen Suzman Foundation (HSF) which is challenging the ZEPs termination as unconstitutional.
The answering affidavit was filed on August 15, 2022, at the Pretoria High Court by Makhode on behalf of both respondents.
ZEPs expire at the end of this year and all holders have been directed to move to other visas or leave South Africa.
“Moreover, in the six-month period since the Minister’s decision to extend the ZEPs for 12 months was announced, only 6 000 of the approximately 178 000 EP holders have taken the opportunity to make representations to the minister,” read part of the affidavit signed by Makhode.
Makhode accused HSF of failing to understand that ZEP holders are entitled to exercise the right to apply for individual exemptions even though most “ZEP holders have failed to use this remedy.”
He explained that the Home Affairs Minister decided to extend ZEPs for a period of 12 months for two purposes.
One, to allow ZEP holders to make individual representations as regards the non-extension of their exemption permits and the 12-month extension of the current ZEPs”
Two, to ZEP holders who wished to do so, the opportunity to apply for visas as contemplated by the Immigration Act.
“As a matter of law and fact, no decision was taken to terminate all ZEPs in that: (a) the ZEPs expired by effluxion of time on 31 December 2021, and (b) the ZEPs were renewed for a period of 12 months,” Makhode said.
“Consequently, the ZEPs have not expired and remain valid until 31 December 2022,” Makhose said, further adding, “no decision has been taken not to grant further exemptions to ZEP holders.”
“This is clear from the fact that ZEP holders are entitled to and were invited to make representations as to why their ZEPs should not be terminated and /or why their ZEPs should be extended for a period longer than the 12 months extension granted by the minister.”
Makhode argued HSF’s request to the Court to deem all ZEPs as valid pending a ‘fair process’ is in fact asking to extend all 178 000 ZEPs “for an indeterminate period (beyond 31 December 2022) in circumstances where only 6 000 of the approximately 178 000 ZEP holders have made representations to the Minister asking for such relief.”
“The relief sought by HSF is in substance a substitution order,” adding “Consequently, the relief sought in respect of deeming ZEPS to be valid is legally unsustainable.”
Makhode listed that Zimbabweans had already received three exemptions.
One, in August 2014 when the minister granted Zimbabweans to make applications between October 1, 2014 and December 31, 2014 for either an extension of the exemption that had been granted to them or to reapply for such exemption if their previous applications had been unsuccessful (Dispensation of Zimbabweans Project -DZP).
The second exemption (Zimbabwe Special Permit) was granted for the period ending December 31, 2017.
“The third exemption (ZEP) differed from the first and second in that the Minister allowed only those who had been granted permits in terms of either the DZP or the ZSP to apply or renew their exemptions for a further period of four years until December 31, 2021. The latter exemption has been extended for a period of 12 months to December 31, 2022,” he said.
Makhode said what HSF sought was the Court to direct the Minister to grant a blanket fourth exemption to ZEP holders, who “were not without a remedy in the absence of a fourth a blanket exemption.”
“This is so because Section 32(1)(b) of the Immigration Act contemplates an individual applicant making an application for exactly this kind of exemption. The impugned decisions in fact allow for this as ZEP holders have an opportunity to make such application, as in terms provided for in the Minister’s decision.
The mechanism through which this application can be made is set out in Regulation 28 of the Immigration Regulations which provides that an application contemplated in Section 31(2) (b) of the Immigration Act shall be made to the Minister on Form 47, supported by reasons for the application,” he said.