Helen Suzman Foundation and Another v Minister of Home Affairs and Another – Q & A

Helen Suzman Foundation and Another v Minister of Home Affairs and Another – Q & A

1. What is at issue in this case and when will it be heard?

At issue in this case is Minister of Home Affairs, Aaron Motsoaledi’s (Minister) decision to terminate the Zimbabwean Exemption Permit (ZEP). If the Minister’s decision is upheld, the ZEP will terminate on 30 June 2023.

The case will be heard between 11 and 14 April 2023 by a full bench of the Pretoria High Court.

2. What is the ZEP?

The ZEP is a special permit issued in terms of the Immigration Act that allows its approximately 178 000 holders, and their children, temporary legal status to live, work and study in South Africa. It is the third iteration of a permit that began back in 2009 as the ‘Dispensation for Zimbabweans Project’ (DZP), which the South African government introduced to cope with an influx of undocumented Zimbabweans fleeing political violence around 2008.

The DZP was renewed as the Zimbabwe Special Permit (ZSP) in 2014, which was in turn renewed as the ZEP in 2017. Whether applying for the DZP, ZSP or the ZEP, applicants had to abandon their attempts at applying for asylum status, show that they had the financial means to support themselves in South Africa and that they had no criminal record.

As such, today’s ZEP holders are a population of law abiding and economically active foreign nationals, who have built lives in South Africa over the last thirteen years – after being forced to do so as a result of desperate conditions in Zimbabwe. Many ZEP holders have children who know no home but South Africa.

3. Are there viable alternatives to the ZEP?

Without the ZEP, its holders can only lawfully remain in South Africa if they are granted one of the Immigration Act’s mainstream visas. However, this is not a realistic option for most ZEP holders, given the legal and practical barriers that stand between them and a mainstream visa.

When the ZSP was introduced, it was made a condition thereof that its holders could not apply for a permanent residence visa. That condition attached to the ZEP as well, leaving its holders unable to apply for permanent residence come 30 June 2023. As a result, most ZEP holders will need to apply for a general worker’s visa to continue their stay in South Africa lawfully.

However, most ZEP holders do not meet the Department of Home Affairs’ (DHA) strict critical skills list and must first secure certification from the Department of Labour that no South African can do their job. This requirement can be waived pursuant to a separate application made to the DHA, prior to making an application for a general worker’s visa. But even in the unlikely event that the DHA looks upon a waiver application favourably, its demonstrated administrative incapacity is a significant practical barrier to acquiring a waiver – let alone a mainstream visa.

On the eve of April’s proceedings, the DHA announced a backlog of 62 692 visa applications, without disclosing how many waiver applications it has yet to process. As a result, the DHA extended to 31 December 2023 all existing long‑term visas, whose holders still have not seen progress on their waiver or visa applications. The same indulgence has not been extended to ZEP holders, rendering successful outcome unlikely even for diligent attempts to apply for a waiver and a mainstream visa before 30 June 2023. Moreover, those who might be entitled to attain asylum status face the same backlogs in processing applications and with the effluxion of time, now face the added difficulty of documenting the persecution they would face if returned to Zimbabwe.

4. What is the road ahead for ZEP holders if the Minister’s decision is upheld?

Without a ZEP and given the practical and legal barriers to acquiring a mainstream visa, the Minister’s decision will leave most of the ZEP’s erstwhile holders with an impossible choice come 30 June 2023: return to Zimbabwe or remain in South Africa as undocumented migrants with all the vulnerability that attaches to such status.

For most ZEP holders and their families, relocating to Zimbabwe would be catastrophic – not only because the lives they have built in South Africa cannot be replicated in Zimbabwe but because present day Zimbabwe resembles too closely the country they fled around 2008. Zimbabwe remains beset by political instability and an economy that has all but collapsed. Children of ZEP holders who have known no home but South Africa would face a disastrous disruption to their education, inability to access healthcare and even adequate nutrition, shelter and social assistance.

As an undocumented migrant in South Africa, an erstwhile ZEP holder will be left without the means to lawfully find work, start a business, study or access basic financial services like opening a bank account. Remaining in South Africa would, thus, not only be against the law but significantly add to the hardship already experienced by ZEP holders.

5. Why did the Minister decide to terminate the ZEP?

When he announced his decision to terminate the ZEP, the Minister gave these reasons:

1. The ZEP was always a temporary measure pending improved conditions in Zimbabwe.

2. DHA’s limited budget.

3. South Africa’s increased unemployment rate.

4. That ZEP holders were violating its conditions.

In its court papers, DHA now denies that ZEP holders contribute to unemployment among South African citizens and that terminating the ZEP would reduce unemployment. Instead, DHA asserts three remaining reasons for terminating the ZEP:

1. That conditions in Zimbabwe have improved.

2. That terminating the ZEP will alleviate pressure on the asylum system.

3. Budget and resource constraints at DHA.

6. What is HSF’s argument?

HSF makes two arguments for why the Minister’s decision to terminate the ZEP is unlawful.

The first is that it was made without consulting ZEP holders or the South African public at large. A ZEP holder’s entitlement to be consulted flows directly from section 33 of the Constitution. This provision enshrines a right to fair government decision‑making – and it is not reserved for citizens. A consequence of the Minister failing to consult before he terminated the ZEP is that he was unaware of the impact that his decision would have on ZEP holders and on the South African society in which they have built their lives. This too, HSF argues, renders the Minister’s decision unlawful.

The second argument is that given the destructive effect that the ZEP’s abrupt termination will have on the lives of its holders and their children, the Minister’s decision unjustifiably limits their constitutional rights. In particular, the right to dignity, enshrined in section 9 of the Constitution, and the requirement, enshrined in section 28(2) of the Constitution that a “child’s best interests are of paramount importance in every matter concerning the child.”

A link to HSF’s court papers, and those of the DHA, can be found here.

7. What outcome does HSF seek?

HSF seeks a declaration that the Minister’s decision is unconstitutional, unlawful and invalid and that it be set aside. Following it being set aside, HSF asks that the decision to terminate the ZEP be sent back back to the Minister to consider afresh, following a proper, procedurally fair process.

Pending such fair process, HSF asks that the ZEP remain valid. HSF does not ask that the court order that the ZEP remain valid in perpetuity.

8. Why is this case important for South African Citizens?

While this case may appear to have the interests of ZEP holders at its fore, the principles which underly HSF’s argument are of concern to all who live in South Africa. Hasty government action that does not respect everyone’s right to be fairly consulted when their rights are adversely affected should be opposed in all its manifestations. This, so that South Africa can be a place where government exercises its power fairly, deliberatively and with full sight of its consequences.

This case is also a recognition that the best interests of ZEP holders and South Africans are not at odds. ZEP holders are a community of migrants, lawfully residing in South Africa, who have contributed a great deal to South Africa’s economic, social and cultural life. By effectively deciding to excise ZEP holders from South African life, without taking the time to assess the impact of losing them, the Minister’s decision threatens to harm South Africans and ZEP holders alike.

9. Who will Appear Before the Court between 11 and 14 April 2023?

Between 11 and 14 April 2023, the Pretoria High Court will hear three separate applications that challenge the Minister’s decision to terminate the ZEP –

1. Helen Suzman Foundation and Another v Minister of Home Affairs and Another

In this matter, HSF is the main applicant and it will be joined by the Consortium for Refugees and Migrants (CORMSA) as an intervening party in challenging the Minister’s decision to terminate the ZEP. HSF and CORMSA are opposed by the Minister and the ‘All Truck Drivers Forum and Allied South Africa’ , who will also join proceedings as an intervening party.

2. Zimbabwean Immigration Federation v Minister of Home Affairs.

In this matter, the Zimbabwean Immigration Federation (ZIF) seeks to challenge the Minister’s decision to terminate the ZEP on essentially the same grounds advanced by HSF and seeks the same outcome.

3. African Amity and Twenty-Nine Others v Minister of Home Affairs and Two Others

In this matter, African Amity NPC (African Amity) is the main applicant, along with twenty-nine individual ZEP holders. African Amity also seeks to challenge the Minister’s decision to terminate the ZEP but seeks relief wholly distinct from that sought by HSF, CORMSA and ZIF. African Amity will be opposed by the Minister.