The extension of the ZEP to next year, while potentially providing some relief for individual ZEP holders, does not, in our view, remedy the fundamental flaws in the minister’s decision to end the permit, and so the court case continues, he writes NicoleFritz.
Earlier this month, Interior Minister Dr. Aaron Motsoaledi extended the Zimbabwe Exemption Permit (ZEP) by a further six months, which now expire on June 30, 2023.
Despite this extension, legal challenges to the decision to end the ZEP continue. Before setting out why this must be so, it is worth examining some of the broader contextual issues. This is not a case that affects all foreign migrants or even all Zimbabwean migrants illegally staying in South Africa.
It only affects the approximately 178,000 ZEP holders who have lived in South Africa for well over a decade and have scrupulously obeyed our laws – by making a formal application, paying fees, obtaining a police clearance certificate and providing supporting documents each time the special issue system has been renewed.
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Migrants are not the cause of our unemployment, poverty, crime or health crisis. But even if there were any truth to this notion, it’s hard to see why we should address the issue by targeting this small group of migrants who have built their lives here in a perfectly legal way.
It should be remembered that the ZEP in its original formulation, the Dispensation for Zimbabwe Project, was developed and offered in 2008-09 following the appalling election-related violence in Zimbabwe, when hundreds of thousands fled and poured into South Africa.
It was set up recognizing that our migrant reception systems would be overwhelmed, that we need to securely track and record those entering the country in our own security interests, and that the prohibitive costs of repeated detention and deportation led to its implementation.
Remarkable solidarity
It should also be remembered that ordinary South Africans at the time showed a remarkable solidarity with Zimbabweans – trade unions, faith communities and civil society responded with extraordinary grace and compassion even when our official line of government on the Zimbabwe crisis was little in sight.
Of course, the well-being of South Africans has plummeted over the past fifteen years and we may feel more constrained in our generosity. But the rhetoric of some newly arrived political actors, who insist that they reflect the feelings of South Africans – that Zimbabweans must simply accept their suffering and not make their problems ours – is in such sharp contrast to our response at the time that we have to ask how accurate it is.
There is now some speculation that the reason for this latest six-month extension is that it is a sedative for Zimbabwe’s ruling ZANU-PF party: delaying the return of those who fled their murderous policies until after the next Elections scheduled for April 2023 means they cannot vote against ZANU.
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I find this speculation hard to believe, starting from such a deeply cynical calculation. But it brings us to this third context problem. The limitations of our human rights system are most evident when we talk about migrants. This system is based on the idea of an effective government agency, willing to promote and respect the rights of people within its territory and to protect the rights of its nationals outside of its territory.
The Zimbabwean government, consisting of the ruling ZANU-PF, is a gross distortion of this idea. Its policies and behavior have forced large numbers of Zimbabweans to flee, and the notion that it would now actually act to protect their interests is fanciful. ZEP holders are spinning in the wind: They face a receiving state that says, “Time’s up, you must go,” and a sending state that has essentially chased them away.
It is this borderline state that makes them so vulnerable. They are precisely the categories to which former Chief Justice Arthur Chaskalson referred when he explained that the purpose of the judicial review — the type of challenge now being brought against the ZEP termination — “was to establish the rights to protect minorities and others who are unable to protect their rights to exercise rights adequately through the democratic process. The socially marginalized and marginalized in our society are also entitled to claim. Only when there is a willingness to protect the worst and most vulnerable among us can we all be sure that our own rights are being protected.”
“Blackmail the Nation”
Yet taking the matter to the courts has provoked a sharp, contemptuous response from the government.
Motsoaledi has accused us, a party bringing the challenge, of trying to “blackmail the nation” and somberly warned of a “dictatorship by some NGOs” who “seek to oust the then-government”. But court proceedings, of course, are not a way to obtain dictatorship or expulsion: it is the means by which we settle disputes peacefully in a constitutional democracy.
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The extension of the ZEP to June 30, 2023, while potentially providing some relief for individual ZEP holders, does not, in our view, remedy the fundamental flaws in the Minister’s decision to end the permit and therefore the court case continues. The main shortcoming not addressed by the extension is that these decisions were made without any form of public consultation – no prior notice, no requests for comment from affected ZEP holders, no notification and comment process, no public inquiry and no meaningfulness Engagement with civil society. This goes against the most basic principles of procedural fairness and ensures an uninformed decision.
The extension also does not present any more compelling reasons for the decision to terminate the ZEP than before the extension and, without additional ZEP holders, does not provide a truly greater opportunity to transition to other visas or secure individual waivers and exemptions to regulate their status.
A few final comments on the motivation for this legal challenge need to be made. It is brought without apology on behalf of the ZEP holders who have lived quite legally in South Africa for more than a decade and have contributed to this country in countless ways.
At the very least, they deserve to be heard and consulted before any possible decision that causes them such harm is made. How much more vulnerable are we South Africans when decisions with such enormously detrimental effects can be made without first consulting those directly affected.
No data
But this legal challenge is also being put forward in a more fundamental way in the interests of South Africans. The Ministry gave very few reasons for the decision to end the ZEP.
In fact, it now says in an about-face that it hasn’t made a decision. It just let the ZEP expire, and so essentially it doesn’t need a reason. But with no reason, no hard data to support that decision, we have no way of assessing whether it’s net positive or net negative for South Africa.
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Do we know how many ZEP holders run small businesses that employ South Africans? How many pay taxes and thus contribute to tax collection and service delivery? How many teach math and science to South African children? How many pay rent that contributes to the South African livelihood?
The minister has at various points vaguely referred to unemployment and crime as a form of justification. But there is no data to support such reasons, and in its legal documents the department appears to have wisely refrained from such an explanation. Bad government decisions—decisions made without proper reasoning and consideration—impact us negatively, even when we are not the direct target. They consume finite resources, human and financial. But right now in South Africa, as we face huge, seemingly overwhelming challenges, bad decisions – supposedly made in the service of solving very real problems – divert our focus and diminish our chances of finding a real solution. Bad decisions make us hunt butterflies when we should be chasing bears.
– Nicole Fritz is Director of the Helen Suzman Foundation
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