Motsoaledi's decision on Zimbabwean Exemption Permit does not take rights away, court hears

13 Apr 2023 | News24

• The Helen Suzman Foundation has gone to court to challenge Home Affairs Minister Aaron Motsoaledi's decision to terminate the Zimbabwean Exemption Permit.
• The permit allows around 178 000 Zimbabwean nationals to live and work in South Africa.
• The court heard on Wednesday that Motsoaledi's decision did not take the rights away from permit holders but conferred them. 

Home Affairs Minister Aaron Motsoaledi's decision not to create a further exemption programme for around 178 000 Zimbabwean nationals living in South Africa does not take away their rights - it confers them.

This was one of the arguments by Motsoaledi and the Department of Home Affairs' director-general in a court challenge by the Helen Suzman Foundation which is being heard in the Gauteng High Court in Pretoria.

During the economic and political strife in Zimbabwean in 2008 and 2009, many of the country's nationals fled to South Africa. 

The South African government at the time decided to create a blanket exemption so Zimbabweans could get permits to live and work in the country legally. 

The permits were effectively extended by creating another permit over the years and have since become known as the Zimbabwean Exemption Permit (ZEP). 

In December 2021, Motsoaledi announced the termination of the ZEP, effectively announcing no further exemption would be created for holders and their children. 

This decision was challenged by the foundation, which argued in court Motsoaledi's decision was procedurally unfair and irrational.

It said he did not consider the impact this would have on ZEP holders, and it infringed on their rights.

On Wednesday, advocate Ismail Jamie SC, for the minister and director-general, dismissed the issues raised by the foundation and premised the respondents' arguments around the fact the decision made was a policy decision. 

Jamie argued such a policy decision was not up for judicial scrutiny and only the policy's implementation could be challenged in a court of law. 

In terms of the implementation, he said this was ongoing as ZEP holders were given until June 2023 to regularise their stay in South Africa by applying for other visas or asking to be exempt from the expiration of the ZEP. 

Jamie added giving a blanket exemption to Zimbabwean nationals entering South Africa in the 2000s was a policy decision based on the issues in the neighbouring country at the time.

Similarly, the decision to not create a further exemption was also based on policy, which he said was based on rational reasons that included budgetary constraints, improvements in conditions in Zimbabwe, and a backlog in the asylum system. 

The decision was also placed under the spotlight on whether Motsoaledi terminated the ZEP or if it expired because of the effluxion of time.

It was argued the minister did not decide to terminate the ZEP but extended its validity to help holders get their affairs in order. 

Motsoaledi said this decision did not remove the rights of ZEP holders but rather conferred them.

This argument also centred around whether the court challenge was premature as the extension granted has yet to expire. 

Jamie conceded Motsoaledi did not decide to create another exemption and said this was not a legal decision but a policy one. 

He reiterated there was no legal obligation to create the blanket exemption in the first place, nor the exemptions that followed, and ultimately ended with the ZEP, which was set to expire at the end of 2021. 

The foundation took the matter to court, seeking a declaration of invalidity and that Motsoaledi's decision be reviewed and set aside.

 

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Common South Africa Visa Mistakes to Avoid

12 Apr 2023 | Migrate With Q

Introduction:

The purpose of this article is to provide helpful information and tips to individuals who are planning to travel or live in South Africa and need to obtain a visa. Specifically, the article will focus on common visa mistakes that travellers make when applying for a visa to South Africa. There are many South Africa Visa types, so you need to know what you are doing.

By highlighting these common errors, the articles aim to help readers avoid these pitfalls and ensure a smooth and hassle-free visa application process. In addition to explaining the common mistakes that travellers make, the articles will also discuss the potential consequences of making these mistakes, such as visa denials, travel disruptions and financial loss.

The articles will provide practical tips and advice on how to avoid these errors, such as researching the visa requirements and gathering all necessary documentation, double-checking all information provided on the application, seeking professional advice if unsure, and applying well in advance.

The importance of avoiding visa pitfalls

Avoiding visa errors is extremely important, as errors in the visa application process can have significant consequences on travel plans and can even result in denied entry to South Africa. Some of the potential consequences of visa errors include:

1. Visa denial: If the visa application is not completed correctly or required documentation is not provided the visa may be denied, preventing the traveller from entering the country.
   
   
2. Travel disruption: Visa errors can cause delays and disruptions to travel plans, potentially resulting in missed flights, cancelled accommodations, and other travel-related expenses.

 

1. Financial Loss: In addition to travel-related expenses, visa errors can also result in loss of visa fees, which can be substantial amounts for some visas.
   
   
2. Legal issues: Providing false information on an application or attempting to enter South Africa without the proper documentation can result in legal issues including deportation and being declared undesirable.

Taking time to research visa eligibility, and gather the necessary documentation can prevent visa errors.

Visa Errors frequently made by South African Visa Applicants

Lack of proper documentation
One of the most frequent visa errors that travellers make is a lack of proper documentation. Depending on the purpose of the visit, different types of documentation may be required, such as passports, travel itineraries, medical and radiology reports and bank records. Failure to provide the correct documentation can result in a visa denial or delays.
People should carefully research the visa requirements for South Africa and ensure that they have all the necessary documentation well in advance for their trip, except for time-sensitive documents. It is also important to double-check that all the information provided on the application form and supporting documentation is accurate and up-to-date, as errors or omissions can lead to visa rejection.

Examples of missing or incomplete documents for South Africa

When applying for a South Africa visa, there are a number of documents that may be required depending on the purpose of the visit. Here are some examples of missing or incomplete documents that can result in visa application rejection or delay:

1. Passport: One of the important documents required for a South African visa is a valid passport. If a traveller’s passport is damaged, expired, or does not have sufficient blank pages, their visa application may be rejected.
   
   
2. Proof of accommodation: Travelers to South Africa are expected to provide proof of accommodation for the duration of their stay, such as hotel bookings or a letter of invitation from a host. If a traveller does not provide adequate proof of accommodation, their visa application may be rejected.
   
   
3. Proof of financial means: South Africa requires travellers to demonstrate that they have sufficient funds to support their stay, such as bank statements. If a traveller does not provide adequate proof of financial means, their application may be rejected.
   
   
4. Medical records: Depending on the purpose of the visit, travellers to South Africa may require to provide medical and radiology reports or proof of vaccinations. Not submitting either of these could lead to your visa being rejected.
   
   
5. Letter of invitation: If a traveller is visiting South Africa for business or staying with a host, they be required to provide a letter from their host. If a traveller does not provide a valid letter of invitation, their visa application may be rejected.

It is important for travellers to carefully review the South African visa requirements and ensure that they have all the necessary documentation well in advance of their trip.

Providing false information

Providing false information on a visa application can have serious consequences, both legally and for future travel. If an applicant provides false information, it is considered a form of fraud and can result in visa denial or revocation, as well as potential legal action with the Department of Home Affairs.

The severity of the false information provided, an individual may be denied entry to South Africa, or even face criminal charges. False information can include anything from providing fake travel itineraries or employment details, to lying about criminal records or health conditions.

Examples of providing false information:

Providing false information on a South African visa application can have serious consequences, including visa denial or revocation, as well as potential legal action. Here are some examples of common false information that applicants may provide on a South Africa visa application:

1. Employment information: Providing false information about employment, such as fake company names or inflated salary, in order to meet financial requirements for the visa.
   
   
2. Travel history: Lying about past travel history, such as failing to disclose previous countries in which you have stayed for more than 12 months or more since the age of 18.
   
   
3. Criminal record: Failing to disclose a criminal record or providing false information about past criminal activity.
   
   
4. Health condition: Lying about a health condition or failing to disclose a contagious disease. which can have public health implications.
   
   
5. Relationship status: Falsely claiming to be in a relationship with a South Africa citizen or permanent resident in order to obtain a visa.

Applying for the wrong type of visa

Applying for the wrong type of visa is a frequent error for foreign nationals when wanting to travel or live in South Africa. It is important to apply for the correct type of visa to ensure that the purpose of the visit or stay is legally allowed and to avoid visa rejection or delay.

For example, a traveller may apply for a tourist visa when their intended purpose is for business, study or work. Each type of visa has its own specific requirements and supporting documentation. Applying for the wrong visa will result in rejection or a delay in obtaining the correct visa, which can impact travel plans and cause unnecessary stress.

Another error is failing to apply for a visa in advance of the trip. Some travellers may assume that they can obtain a visa on arrival, but this is not always the case. It is important to check the visa requirements and application process for South Africa in advance of the trip to ensure sufficient time for processing and potential additional requirements.

To avoid applying for the wrong type of visa, it is recommended that travellers carefully review the South African visa requirements and select the appropriate visa based on the purpose of their visit. It is also recommended to seek professional advice if there are any doubts or questions about the visa application process.

How to avoid errors with your South Africa Visa

To avoid immigration errors, it is important to carefully follow the visa process and eligibility criteria. Here are some tips to help you avoid these errors:

1. Research visa requirements: Before applying for a visa, it is important to research the specific eligibility criteria for the destination. This includes determining the type of visa needed, the necessary supporting documents, and the application process and timeline.
   
   
2. Gather all necessary documentation: Make sure you have all the documentation ready and organized before submitting your visa documents. This can include items such as a valid passport, proof of accommodation, return tickets, and proof of financial support.

 

1. Double-check all information provided: Before submitting your application, it is important to double-check all information provided for accuracy and completeness. Even small errors can lead to visa denial, so take the time to review all information carefully.
   
   
2. Seek professional advice If unsure: If you have any doubts or questions about the visa application process, it’s best to seek professional advice. This can include consulting with a visa specialist or immigration lawyer to ensure that you have a thorough understanding of the process.
   
   
3. Apply well in advance of travel: it is important to apply for a visa well in advance of your planned travel date to allow sufficient time for processing and any additional documents that may be necessary. Applying early can also help to avoid last-minute stress and potential travel disruptions.

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Motsoaledi failed to apply his mind to ending Zimbabwe special permits, court told

12 April 2023 | Business Live

Helen Suzman Foundation argues holders ‘abided by the law for 14 years and had built lives in SA’

Home affairs minister Aaron Motsoaledi did not consider the harmful effects of his decision to end the Zimbabwe exemption permit (ZEP) regime, the high court in Pretoria heard on Tuesday. On that basis alone his decision was unlawful, said Steven Budlender, counsel for the Helen Suzman Foundation (HSF). 

The court was hearing three separate applications on the special permits, which had allowed about 178,000 Zimbabweans to lawfully live in SA since 2009.  

The permits, due to expire at the end of June, were first introduced in response to a political and economic crisis in Zimbabwe that created an exodus to SA. The permit regime was twice extended — in 2014 and 2017 — but the government says it was always clear that the permits were temporary.   

In November 2021, the cabinet announced that the government would “no longer issue extensions to the Zimbabwean special dispensation” and gave holders a year’s “grace” to get their immigration status in order. The year’s grace was then extended for another six months.  

Budlender began his address to the court by saying the case is “not about illegal foreigners”. The holders of ZEPs are “here lawfully, pursuant to a programme put in place by the government”. They have abided by the law for 14 years, he said, and have built lives in SA. 

The HSF challenged Motsoaledi’s decision on a number of grounds, including that there was no meaningful consultation with those affected before the decision was taken, and that the minister had not considered the effect of his decision on the holders of the permits and their children. 

Budlender said by law a decision over the exemption permits was required to be taken by the minister: “The decision-maker in this case is the minister, not the director-general, not any other official.”

Yet Motsoaledi had not put any affidavit before the court in this case, he said. He had not even put in an affidavit confirming what the director-general had said. “He says nothing. That’s not a technical point, with respect. It’s a very serious one,” said Budlender.

But even if the court were to look past this, there is still no answer, he said. The minister should have had proper information before him on who would be affected, to what degree, and what measures were in place to ameliorate the harm.

“A decision of this import required the minister to apply his mind to its impact ... [It] required, at minimum, that the minister should have had proper information before him on who would be affected, to what degree, and what measures were in place to ameliorate the harm,” said Budlender. 

When the director-general briefed the minister on what to do about the exemptions on September 20 2021, his submissions were “entirely silent” on the effect the decision would have on permit holders.  

The minister had then simply approved the director-general’s submissions on the same day — according to a version of the director-general — “without any further interrogation”, said Budlender. A press statement by Motsoaledi that followed on January 7 2022 was again “entirely silent” on the impact, he said. 

When asked by the HSF for the relevant documents and records, none was forthcoming, said Budlender. And though the director-general said in court papers that the impact “weighed heavily”, this was a “patently bald statement” and one for which there was no evidence, he said. 

Counsel for the Consortium for Refugees and Migrants in SA, David Simonsz, said the reasons the government gave for ending the permits do not withstand scrutiny. He said the permits were introduced because of the dire situation in Zimbabwe, yet conditions there had not improved and the government had provided no evidence to the contrary.  

Simonsz said if the government had come to court with credible research and reports that showed an improvement in Zimbabwe’s situation “and said ‘here’s my evidence’”, then the debate in court may have been a different one. But the government had simply not brought sufficient research into the facts.

Another reason given by the government for ending the ZEP permits was to save money, because resources at the department of home affairs had been constrained as a result of the Covid-19 pandemic, said Simonsz. But the ZEPs were introduced as a cost-saving mechanism to relieve the pressure on other immigration routes, such as the asylum system. The “true irrationality” was to drop a cost-saving mechanism to save costs, he said.  

Counsel for the minister will argue the government’s side of the case on Wednesday.

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Zimbabwe exemption permit case: Canny Maphanga

SABC News | 12 Apr 2023

Counsel on behalf of the Helen Suzman Foundation has poured cold water on what it terms allegations, that Zimbabwe is improving. In its court challenge of the termination of the Zimbabwean Exemption Permit (ZEP), Counsel on behalf of the foundation argued that the claim is unsubstantiated. The Foundation is currently challenging the Home Affairs Minister's decision to terminate the ZEP as of 30 June 2023. The termination will impact the lives of at least 180 000 ZEP holders and their children. SABC News reporter Canny Maphanga spoke to us more.

Watch the full video here:

Home Affairs in the dock over termination of ZEP system

Moneyweb | 12 April  2023 

Challenges to SA’s decision to end the Zimbabwean Exemption Permit system are now being heard in court.

One of the most important human rights cases of recent decades got underway in the Pretoria High Court on Tuesday, with no fewer than four separate cases challenging Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) system.

First to the podium was the Helen Suzman Foundation (HSF), represented by Advocate Steven Budlender, which is asking a full bench of three judges to set aside Motsoaledi’s November 2021 decision as unlawful, unconstitutional and invalid.

An inevitable impact of his decision is that tens of thousands of ZEP holders will be left undocumented due to the practical difficulties of obtaining alternative permits that would allow them to continue living and working in South Africa.

Pressure

As the 30 June 2023 deadline for ZEP holders to obtain alternative permits approaches, the fate of 178 000 permit holders and their families hangs in the balance.

Last week it was announced that the case would be heard online rather than in person, a decision that angered some Zimbabweans who feel their future security in the country is under threat.

Motsoaledi has urged them to apply for ‘mainstream’ visas, but few are likely to qualify in terms of the Department of Home Affairs Critical Skills List.

This means their fate hangs on the outcome of this case.

Budlender said there is no evidence that any of the estimated 4 000 ZEP holders who applied for waivers are receiving an alternative permit.

Children’s rights concerns

Several of the groups challenging the minister’s decision to end the ZEP system point to the catastrophic effect this will have on the region. Hundreds of thousands of people, including children who have grown up and attended school here, would be forced to uproot and relocate to Zimbabwe.

“We do not say that the minister had no power to terminate [the ZEP system]. He did. But he had to consult and consider the impact on Zimbabweans and make sure he did not breach fundamental human rights in the Constitution,” argued Budlender.

There are multiple grounds on which the decision should be set aside by the court, including its lack of procedural fairness, he added.

The decision further trampled constitutional guarantees of the right to dignity and children’s rights, not least because there is a danger that children could be separated from their parents.

The minister made the decision without prior consultation with ZEP holders or the public, he argued.

For and against

In an affidavit before the court, HSF executive director Nicole Fritz said the minister’s decision was procedurally unfair and irrational; posed an unjustified limitation of the constitutional rights of ZEP holders and their children; the decision was taken without regard to the impact on ZEP holders; and it ignores the present living conditions in Zimbabwe.

The HSF argued that the Zimbabwean economy has not recovered sufficiently to allow ZEP holders to return to their country of origin.

Department of Home Affairs director-general Livhuwani Makhode deposed in an affidavit that the relief the HSF is seeking would effectively confer rights of permanent residence on ZEP holders, contravening the express conditions under which those permits were granted.

“Moreover, it is estimated that there are more than a million undocumented Zimbabweans currently living in South Africa,” says Makhode.

“An order that declares that it is unconstitutional to deny further exemptions to ZEP holders until the Zimbabwean economy has recovered sufficiently, whatever that might mean, would entitle any undocumented Zimbabwean to compel the minister to grant him/her an exemption from the provisions of the Immigration Act because of the economic situation in that country.”

Truck drivers add their voice

Also challenging the minister’s decision are the ZEP Holders Association (Zepha), the Zimbabwe Immigration Federation and the All Truck Drivers Forum and Allied South Africa (ATDFASA).

Zepha also wants the decision set aside, but argues that ZEP holders have the right to permanent residence in SA.

Counsel for ATDFASA Advocate Matthews Mojapelo argued that the minister had no right to grant the exemption permits in the first place, nor to extend them when they expired.

Various iterations of the ZEP system have been in place since 2009, allowing Zimbabweans fleeing political and economic turmoil at home to live, work and study in SA.

Small population of ZEP holders

ATDFASA wants the entire exemption permit system to be declared unlawful and for ZEP holders to be granted 12 months to get their affairs in order – either obtain an alternative visa, or return to Zimbabwe.

David Simonsz, counsel for the Consortium for Refugees and Migrants in South Africa (CoRMSA), a non-profit organisation tasked with promoting and protecting refugee and migrant rights, disputed many of the reasons cited for the termination of the ZEP system, including lack of funds, and claims that economic conditions had improved in Zimbabwe, thereby making it more attractive for those returning.

It is also claimed that undocumented Zimbabweans are contributing to unemployment in SA, although HSF and others argued that 178 000 permit holders out of a population of more than 60 million makes hardly any difference to employment figures.

The case resume on Wednesday with arguments from the counsel for the minister of Home Affairs.

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