Understanding the Helen Suzman Foundation Zimbabwean permit case against Home Affairs

Groundup - 27 Jun 2022

Hundreds of thousands of Zimbabweans living in South Africa may find themselves undocumented on 1 January 2023. The HSF is trying to stop this.

The Helen Suzman Foundation (HSF) is taking the Minister of Home Affairs to court, seeking to set aside what it describes as a “hasty, untransparent and ill-considered” decision not to renew, beyond December of this year, the Zimbabwean Exemption Permit (Zep).

About 178,000 Zimbabwean nationals live, study and work legally in South Africa with the Zep. The permit was first introduced 13 years ago to regularise the status of the many Zimbabweans living in the country.

The HSF says in its application, filed in the Pretoria high court, that the Zep was introduced in recognition of the dire situation in Zimbabwe and to alleviate pressure on the Department of Home Affairs in processing applications for asylum.

But now, they face becoming “undocumented” at the end of this year.

HSF executive director Nicole Fritz says in her affidavit that this will expose Zimbabwean immigrants to dangers of xenophobic attacks, extortion, detention and deportation.

They will lose their jobs, businesses and homes. They will lose access to banking services. Their children could be denied access to schooling, medical care and social services and they will be forced to return to Zimbabwe.

“They will be put to a desperate choice: to remain in South Africa as undocumented migrants with all the vulnerability that attaches to such status or return to a Zimbabwe that, to all intents and purposes, is unchanged from the country they fled.

“There are thousands of children who have been born in South Africa to Zep holders during this time who have never even visited their parents’ country of origin,” Fritz said.

The HSF wants a judge to rule that the minister’s decision, announced in January this year, to terminate the Zep is unlawful, unconstitutional and invalid, and that it be reviewed and remitted back to the minister for reconsideration “using a fair process” involving meaningful engagement with those affected and civil society.

“We do not contend that the minister is obliged to extend exemptions in perpetuity, nor do we argue that permit holders may never have their permits withdrawn. This case concerns the manner in which the minister reached his decision,” Fritz says.

“It should have been taken following a fair process, for good reason and with a meaningful opportunity for permit holders to regularise their status.

“A decision of this consequence, impacting more than 178,000 people, required proper information on who would be affected, including children, and a careful assessment of the current conditions in Zimbabwe,” Fritz said.

She said the minister’s “silence on the impact” coupled with an absence of any meaningful justification, threatened to reinforce and entrench xenophobic attitudes towards the permit holders.

“It suggests their lives and rights are of lesser concern and may be disregarded entirely in pursuit of political expediency.

“This unavoidable impression is reinforced by the minister’s press statement in which he claimed to have received overwhelming support of the decision by South African citizens expressed in messages widely circulated on social media.

“A brief search of these posts turns up countless messages expressing xenophobic attitudes, crude stereotypes and hate speech,” Fritz said.

She said economic and political conditions in Zimbabwe had not materially changed.

In fact, reports by credible international organisations such as the World Bank, the IMF and Human Rights Watch, were unanimous that conditions remain dire, that poverty rates were rising alarmingly and political life was characterised by widespread violence and social upheaval.

There were also legal and practical barriers to the permit holders obtaining alternative visas.

Four permit holders, including a Johannesburg teacher, have put up affidavits in support of the application, highlighting their fears for their future, and that of their families, should their permits lapse at the end of December.

The Minister and Director-General of Home Affairs have four weeks to file opposing affidavits.

www.samigration.com

 

Me working here was our only lifeline: December 2022 deadline looms for Zimbabwean Exemption Permit holders

News24 23 June 2022

 

"New immigration policy undoubtedly intends to crack down on foreign nationals unlawfully working in South Africa."

• The new immigration policy undoubtedly intends to crack down on foreign nationals unlawfully working in South Africa.
• Zimbabwean domestic workers and labourers without proper work permits will face deportation by the end of the year.
• We chat with a legal professional to understand what this policy is about, how it will affect ZEP holders, and what it will do for South Africa's economy.

The South African government has said that Zimbabwean Exemption Permit (ZEP) holders must find alternative ways to stay in South Africa legally by 31 December 2022.

Only Zimbabweans with a Visa Facilitation Services (VFS) Global receipt to show that they have applied for an alternate visa can continue working, studying, and using banks.

Unfortunately, the situation will be very bleak for Zimbabwean labourers, construction workers, e-hailing drivers, gardeners, and domestic workers because they will not qualify for the other visas in the Immigration Act, such as permanent residence, study visa, and critical skills visas as they do not fall under these categories.

'Children attending school in SA'

One concerned father said he came to South Africa in 2011. He has two children with South African women. The two children are attending school in South Africa, and he is financially responsible for them. Should he be deported, the children would be at risk of dropping out of school and living in extreme poverty.

The father said he tried to apply for a critical skills work visa and registered with the SA Body of Natural Sciences and the South African Qualifications Authority, but didn't get approval because he didn't have the required years of work experience.

'Their contribution to society remains unrecognised' Ramaphosa praises domestic workers

Speaking at a Cosatu women's event in Ekurhuleni, ANC president Cyril Ramaphosa praised domestic workers for their role in the country, saying that more needs to be done to ensure their rights are protected, and they receive decent wages.

Deportation will devastate family

A mom who wanted to remain anonymous and works as a childminder told us she was devastated when she heard the news that Zimbabweans without a proper work permit would be deported.

"I support three children in Zimbabwe. I am also supporting my mother financially as she has health challenges. Me working here was our only lifeline, and I am very worried."

To understand what this policy is about, how it will affect ZEP holders in South Africa, and why it is necessary, News24 spoke to Bernard Reisner, a labour and industrial consultant at Cape Labour & Industrial Consultants, a law firm based in Cape Town.

'First comprehensive national policy'

"The Draft National Labour Migration Policy (NLMP) is the first comprehensive national policy on South Africa's labour migration management," said Reisner.

He said the policy sought to achieve a "brain gain" through skills entering the country and counter a "brain drain" through skills leaving the country.

"The NLMP has been created to make it legal for the government to regulate the employment of foreign nationals in South Africa," Reisner added.

Why implement such a policy?

This comprehensive labour migration policy was implemented because South Africa was the most prominent host of foreign nationals when compared to other African countries.

The draft policy will attempt to put more power in the hands of the Department of Employment and Labour, rather than Home Affairs, to govern and manage labour migration.

"Historically, Home Affairs has been the main administrative authority, with the Department of Employment and Labour acting mostly in an advisory capacity," explained Reisner.

The policy stated that it would make labour migration more beneficial to the South African economy through interventions that would attract and retain skills in the country.

'Enforcing the policy is key'

Reisner said the draft policy was undoubtedly aimed at cracking down on foreign nationals unlawfully working in South Africa.

"Writing a policy is one aspect, and implementing it is another. South Africa does not have a great track record for enforcing the existing labour and migration laws," said Reisner.

However, the NLMP policy has not yet been set in stone. 

"It still needs to go through a parliamentary process that will likely take a lengthy time," he added.

Foreign nationals urged to get registered and stay away from criminal activities

Anti-crime protests turned violent last week and led to a vigilante attack on a Zimbabwean national, Elvis Nyati, with the mob killing and burning him

Fine or imprisonment

But he cautioned that an employer who knowingly employed a foreign national who did not possess a valid work permit, could be fined or face imprisonment of up to one year for a first offence.

"It should be noted that even if a domestic worker does not have a valid work permit, they still enjoy all the rights afforded by labour legislations such as the Labour Relations Act, Employment Equity Act and the Basic Conditions of Employment Act," he elaborated.

"Once the NLMP is made known, it shall reaffirm that a domestic worker/nanny who is a foreign national employed in South Africa, without a relevant work permit, shall not be entitled to continue working legally in South Africa," Reisner said.

"A domestic worker does not fall within the ambit of critical skills to perform their work. As a result hereof, persons employed in this sector can be sourced by South African citizens to meet South Africa's labour market needs". 

www.samigration.com

 

IT’S OFFICIAL: Face masks are gone, border checks and gatherings ban dropped

Business Insider SA – 23 June 2022

• As of Wednesday, South Africans no longer need to wear face masks.
• Limits on gatherings and border checks for Covid-19 – and the need to be vaccinated to enter South Africa – have also been dropped.
• Health minister Joe Phaahla quietly repealed the regulations by notice in the Government Gazette, ahead of a planned press conference on Thursday.

As of Wednesday, South Africans no longer need to wear masks indoors in public settings.

Limits on gatherings, and border checks – including for vaccination status – have also been dropped.

Health minister Joe Phaahla repealed the relevant regulations with a simple notice in the Government Gazette, the import of which was not immediately evident because of the technical nature of the notice.

Phaahla is due to join the minister in the Presidency, Mondli Gungubele, for a press briefing on Thursday, about cabinet deliberations after the health department advised that Covid-19 restrictions should be dropped.

They were expected to announce that President Cyril Ramaphosa and his cabinet had signed off on ending the last major restrictions relating to Covid-19, first imposed during what was expected to be a lockdown of three weeks.

The mask mandate and other restrictions had originally been imposed under the authority of a national state of disaster. When that was discontinued, the same rules were imposed under the power granted to the health minister to deal with notifiable medical conditions.

By repealing three sections of those regulations, "in their entirety", Phaahla with immediate effect ended those obligations. 

Capetonians take advantage of new Covid-19 mask regulations

On Wednesday South Africans had the pleasure of roaming the streets and other outdoor spaces without having to wear a mask, for the first time in over two years. This comes after President Cyril Ramaphosa relaxed regulations under alert Level 1. He went on to say that wearing masks indoors, is still compulsory.

The repealed rules formed part of what is formally known as the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions, into which they were inserted on 4 May. They are:

• 16A: "Wearing of face masks to contain the spread of Covid-19", which required a mask in any public-use indoor space or when on public transport
• 16B: "Regulation of gatherings to contain the spread of Covid-19", which limited any gathering of more than 100 people to 50% of maximum venue capacity if everyone was vaccinated, or to an absolute maximum of 1,000 people indoors or 2,000 people outdoors if vaccination status was not checked.
• 16C: "Regulation of persons entering the country to contain the spread of Covid-19", which demanded either vaccination certificates or recent negative PCR tests, or proof of recovery from Covid-19, from all travellers older than 12 entering South Africa.

The three sets of regulations, now scrapped entirely, had each contained clauses that would have allowed Phaahla to temporarily suspend their enforcement, then reinstate them again if he saw fit.

In a letter to MECs dated two days ago, Phaahla said "current epidemiological analysis points towards lower infection rates and that the country has exited the recent spike (5th wave), which the current limited regulations were promulgated to mitigate."

He told those provincial health leaders that recommendations to scrap regulations 16A, 16B, and 16C would be discussed by cabinet "in the next 48-72 hours".

That expectation turned out to be overly pessimistic, but the speed with which the proposals were processed remained secret, with the Presidency on Wednesday still unable to "confirm any timelines" around meetings.

www.samigration.com

 

 

 

New quotas to limit hiring of foreigners in South Africa: minister

Businesstech – 23 June 2022

Employment and Labour minister Thulas Nxesi says his department is in the process of finalising two new documents which will tighten employment laws, including limitations on the hiring of foreigners.

Nxesi was responding to complaints by truck drivers this week which led to a major blockage of the N3 highway. One of the key complaints raised by the drivers is that jobs are being taken by both legal and illegal foreign workers.

One of the key ways that government plans to address this is through the proposed National Labour Migration Policy, Nxesi said. He noted that the policy aims to achieve a balance across several areas, including:

• The first is to address South Africans’ expectations regarding access to work opportunities, given worsening unemployment and the perception that foreign nationals are distorting labour market access. The NLMP, together with proposed legislation, will introduce quotas on the total number of documented foreign nationals with work visas that can be employed in major economic sectors such as Agriculture, Hospitality and Tourism, Construction, etc.

• The NLMP will be complemented by small business interventions and enforcement of a list of sectors where foreign nationals cannot be allocated business visas and amendments to the Small Business Act to limit foreign nationals establishing SMMEs and trading in some sectors of the economy.

• The Department of Home Affairs is reviewing current legislation and strengthening the Border Management Authority to secure porous borders and to allow for the orderly movement of people and other nationals through ports of entry only.

• Government plans to ramp up inspections to enforce existing labour and immigration legislation.

Employment Services Amendment Bill

Nxesi said the National Labour Migration Policy goes hand in hand with the proposed Employment Services Amendment Bill, which provide the legal basis to regulate the extent to which employers can employ foreign nationals in their establishments while protecting the rights of migrants.

The proposed amendments to the Employment Services Act aim to limit the extent to which employers can employ the number of foreign nationals in possession of a valid work visa in their employment,” he said.

It will also place several obligations on an employer employing foreign workers, including:

• Only employ foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act, or any other provision;
• Ascertain the foreign national is entitled to work in the Republic in the relevant position;
• Satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy;
• Prepare a skills transfer plan, where appropriate;
• Employ foreign nationals on the same terms as local workers; and
• Retain copies of relevant documentation

www.samigration.com

 

 

Home Affairs plans to reinforce transit visas after OR Tambo arrests

EWN – 23 June 2022

The Bangladeshi and Pakistani nationals allegedly arrived on a Qatar Airways flight from Doha earlier this week.

JOHANNESBURG - The Home Affairs Department plans to reinforce transit visas after eight undocumented migrants were arrested at OR Tambo International Airport for attempting to enter South Africa through a fire hydrant.

The Bangladeshi and Pakistani nationals allegedly arrived on a Qatar Airways flight from Doha earlier this week. The group were arrested by police after hiding in a network of tunnels via a fire hydrant at the airport.

In 2015, Home Affairs stopped transit visas for people who were passing through South Africa en route to neighbouring countries. However, Minister Aaron Motsoaledi said this has led to an increase in illegal activities.

"We are deciding in Home Affairs that the transit visa will once more be needed, but I'm sure you saw on social media when they were pulling people out of the fire hydrant. When they move in there is a passage, that passage is for pipes and wires and all that."

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