By Lehlohonolo Lehana.
The Pretoria High Court reserved judgment in the case brought by the Zimbabwean Exemption Permit Holders (ZEPHA) and other civil society organisations against government.
In April 2009, South Africa established the Dispensation of Zimbabwean Permit (DZP) to regularise the status of thousands of Zimbabwean nationals who had fled political and economic instability in their country, mostly between 2007 and 2009.
The special exemption was reissued as the Zimbabwean Special Dispensation Permit (ZSP) in 2014 and the ZEP in 2017, before South Africa’s cabinet decided to cancel it altogether in November 2021.
To ease their plight, ZEP holders were given a 12-month grace period – an extension ending on December 31, 2022 – to either apply for a mainstream visa or leave the country.
Nevertheless, in September 2022, Home Affairs Minister Aaron Motsoaledi extended the validity of the ZEP by a further six months, to June 30, 2023, delaying an arduous and unclear finale for the forsaken Zimbabweans.
On Friday, much of the day was spent in technical arguments about the validity of amendments made to ZEPHA’s notice of motion, specifically two words: “to be” which was changed to “apply for”. ZEPHA had previously asked for ZEP holders to be given permanent residence. This was then changed to ask the court to allow them to apply for permanent residence, as required by the Immigration Act.
ZEPHA had also asked for the Minister of Home Affairs’ decision not to renew the ZEP scheme to be set aside as unlawful and invalid.
In addition to wanting the decision to discontinue the ZEP programme reviewed and set aside, they also want a declaratory order to the effect that ZEP holders had a legitimate expectation to at least apply for permanent residency in South Africa.
This is despite the fact that the conditions of the ZEP bar them from doing so.
Arguing for the state, advocate Myron Dewrance said the ZEP permit specifically prohibited the holder from applying for permanent residence. “It gives you the right to be in the country, but not the right to permanent residence,” he said. He then asked the court to dismiss ZEPHA’s case with costs.
Dewrance said ZEPHA’s case was insufficiently pleaded and had been litigated in a reckless manner.
Advocate Simba Chitando, representing ZEPHA, said the state was disingenuous in taking a procedural step to avoid arguing the merits of the case. In papers before the court, ZEPHA argues that the Immigration Act makes provision for those residing in South Africa under a variety of visa programmes to apply for permanent residence and that this right should be granted to ZEP holders.
The court reserved its ruling. Judge Colleen Collis, who’s leading the full bench: “In order to do justification to the merits of this application as well as the importance of the application to the parties concerned and the urgency of this application, it would be prudent rather reserve our ruling.”
Zimbabwe’s economy is in the doldrums and countless Zimbabweans want to move abroad – a depressing but longstanding fact that could discourage most ZEP holders from leaving South Africa before or after June 30.
Notwithstanding these substantial and pervasive troubles, Motsoaledi defended the termination of the special exemption in January 2022 on the grounds that it was always supposed to be “a temporary measure – pending improvement of the political and economic situation in Zimbabwe”.
Additionally, he claimed the home ministry had inadequate financial and human resources to facilitate the extensions of the special exemptions.