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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New deal for children with foreign parents born in South Africa

11 Apr 2023 | Chris Fricks & Associates

The Constitutional Court recently ruled that children born in South Africa to foreign parents qualify for South African citizenship in terms of Section 2 of the South African Citizenship Act. That is, if you were born in South Africa to foreign parents who have not been admitted as permanent residents, you qualify to apply for South African citizenship upon becoming a major if your birth was registered and if you have lived here all your life, irrespective of the date of your birth and you have not accepted the nationality of another country. The judgment also reduced the term for applying for citizenship by holders of permanent residence from 5 years to 10 years by declaring Regulation 3(2)(a) of the Citizenship Act Regulations unconstitutional.

This judgment settled a long-standing dispute between a Congolese couple, their minor child and the Department of Home Affairs. The Constitutional court judgment was an appeal from the Western Cape High Court Decision. The couple who were refugees renounced their Congolese citizenship in line with the advice they received from the Department of Home Affairs to qualify for South African citizenship. Unfortunately, their applications for South African citizenship were rejected on the basis that they did not comply with Regulation 3(2)(a) of the Citizenship Act Regulations.

Regulation 3(2)(a) sets a minimum period of 10 years ordinary residence prior to applying for citizenship whereas Section 5(1)(c) of the Act sets a minimum period of 5 years ordinary residence. The result was that the couple and their third child became Stateless. Being frustrated by their effort to sort out the issue with the Department of Home Affairs, the couple approached the High Court for a relief. The couple sought an order declaring Regulation 3(2)(a) invalid and unconstitutional. The Department of Home Affairs could not justify the difference in the minimum period of 5 years imposed in Section 5(1) of the Act and the 10 years imposed in Regulations 3(2)(a).  Regarding section 5(1), the High Court accepted that the section does create a minimum period, but it does not allow for an extension of that period nor does it create a maximum period. The High Court in Cape Town thus concluded that the Regulation could not amend the legislation and the 10 year period in Regulation 3(2)(a) was a patent error.

The court further held that the Department’s argument that the child could apply for citizenship when he reached the age of 18 years was not in accordance with the right of the child to a nationality as set out in section 28(1)(a) of the Constitution. Furthermore, the child ought to be placed in a position where he too can qualify for South African citizenship. Consequently, the High Court declared the reference to “10 years” in Regulation 3(2)(a) to have been ultra vires (beyond the legal power or authority) of section 5(1) of the Act and irrational, vague and inconsistent with the Constitution and therefore invalid.

The High Court suspended the declaration of invalidity pending the confirmation of its order by the Constitutional Court. However, the High Court refused to grant the substitution order on the couple’s application for citizenship stating that it was not in as good a position as the administrator at Home Affairs to make that decision. The couple therefore approached the Constitutional Court to confirm the declaration of constitutional invalidity. In the alternative, they applied for leave to appeal the suspension order directly to the Constitutional Court.

The Constitutional Court Stated that the rights of a child are adversely affected as the High Court declined to consider the child’s application for citizenship and held that his application was dependent on the outcome of his parents’ permanent residence applications. The Court further stated that any further delay in finalising the matter will prejudice the applicants who remain stateless. The Constitutional Court Held that the High Court erred when it suspended the declaration of invalidity of Regulation 3(2)(a). There was no basis for the suspension order as the Constitutional Court does not need to confirm a declaration of invalidity relating to regulations. The Constitutional Court set aside the High Court judgment with regard to the suspension of the constitutional invalidity.

The effect of the judgment is that a child born to foreign parents qualifies for South African citizenship when the child turns 18 in terms of Section 2 of the Citizenship Act irrespective of when the child was born provided the child does not have the citizenship or nationality of any other country and his or her birth is registered in the Republic in accordance with the Births and Deaths Registration Act, 1992 (Act 51 of 1992). It should be noted that being the holder of a foreign passport is proof that that you are a citizen of that country and may deprive you from the opportunity to apply for South African citizenship. Foreigners can now also apply for citizenship after just five years of permanent residence.

Read judgement here:  http://www.saflii.org/za/cases/ZACC/2019/1.pdf

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South Africa’s birth registration system challenged over ‘unconstitutional’ requirements

11 April 2023 | Biometrics News 

South African human rights organization the Legal Resources Center (LRC) has initiated a legal challenge against the country’s Department of Home Affairs over the what it says are cumbersome requirements for establishing birth certificates for children born in the country.

The LRC, acting on behalf of 17 parents, last year, filed an application at the Cape Town High Court challenging the Birth and Death registration Act regulations as anti-constitutional, according to reporting by Mail & Guardian. Home Affairs is opposing the application.

For a birth certificate to be issued to a child born in South Africa, the regulations of the Birth and Death Act require a document showing proof of birth of the child (obtainable from the hospital where the child was born), submission of the child’s biometrics (palm, foot or fingerprints) and a certified copy of the parents’ identity document such as a valid visa, passport or temporary stay permit, among other requirements.

Speaking to South African broadcaster SABC recently, the LRC’s candidate attorney representing the parents in the matter, Muyenga Mugerwa-Sekawabe, explained that children end up not having birth certificates because their parents are unable to meet up with some of the requirements outlined in the Act.

Birth registration is vital in South Africa as it enables children, later on in their lives, to have access to a wide range of services such as admission into schools. Also, the national ID card can only be issued upon the presentation of a birth certificate.

“In addition to these, the parents are also obliged to submit all the requirements within a period of 30 days of the child’s birth,” said Muyenga.

This, he said, makes it difficult for many parents to comply with the demands, which means their children may not be able to obtain a birth certificate in their lifetime.

The official added that one common case reported to their office is that of children of asylum seekers, or non-South African nationals, some of who do not have papers or have papers which have expired and cannot be renewed within 30 days.

“As such, their children’s births cannot be registered. We also have cases of children whose parents are South Africans but who abandoned them at an early age of either five, six or seven. At the later age when the children require an ID, it becomes difficult for them as they don’t have any documents to prove their parentage,” said Muyenga.

The LRC has in the past couple of years received complaints from parents who have unsuccessfully tried to establish birth certificates because of the demanding regulations.

“The 30-day deadline requirement is also one of the issues being challenged. This is a problem for people living in very remote areas of the country and those with very low income who may find it difficult traveling to the nearest home affairs offices to register their children before deadline,” the LRC Attorney told SABC.

All of these difficulties, the Attorney explained, end up creating bigger problems in the future for children who do not have birth certificates.

“Without the birth certificate, you cannot open a bank account, and having a job will be more difficult. Having access to education and healthcare will be a very challenging thing to do. So, where these unregistered children find themselves is very precarious. They may have to depend on other people, for instance, to open a bank account for them,” he added.

Early this year, South Africa’s cabinet approved a bill for an integrated digital ID system, which seeks to harmonize the country’s databases.

www.samigration.com