IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO:

In the matter between:

HELEN SUZMAN FOUNDATION - Applicant

and

MINISTER OF HOME AFFAIRS - First Respondent

DIRECTOR-GENERAL OF HOME AFFAIRS - Second Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

NICOLE FRITZ

state under oath as follows:

1. I am an adult female with full legal capacity and the Executive Director of the Helen Suzman Foundation (HSF), the applicant herein. I am duly authorised by the applicant to depose to this affidavit and to bring this application on its behalf.

2. The facts contained in this affidavit are within my personal knowledge, unless the context indicates otherwise, and are true and correct, to the best of my knowledge and belief.

3. Where I make submissions on the applicable law I do so on the advice of the applicant's legal representatives.

INTRODUCTION AND OVERVIEW

4. This application concerns the rights of over 178,000 Zimbabwean nationals who are holders of Zimbabwean Exemption Permits (ZEPs).

5. For more than thirteen years, the Minister of Home Affairs (Minister) has granted exemptions to qualifying Zimbabwean nationals under section 31(2)(b) of the Immigration Act, 13 of 2002 (Immigration Act), affording them the rights to live and work in South Africa.

5.1. In 2009, the Minister introduced the Dispensation of Zimbabweans Project (DZP) to give legal status to over 250,000 Zimbabweans who had fled the economic and political instability in their country.

5.2. In 2014, the DZP was extended and renamed the Zimbabwean Special Permit (ZSP).

5.3. In December 2017, the ZSP was then replaced with the ZEP, which was initially due to expire on 31 December 2021.

6. In reliance on these permits, Zimbabwean nationals have established lives, families, and careers in South Africa, which have now been placed in jeopardy.

7. The Minister has decided to terminate the ZEP programme and to refuse any further extensions beyond 31 December 2022.

8. That decision is reflected in a public notice to ZEP-holders, dated 5 January 2022; a directive, "Directive 1 of 2021", published in the Government Gazette on 7 January 2022; and a further press statement released by the Minister on the same day (decision).

9. The Minister took this decision without any form of public consultation process.

There was no prior notice, no calls for representations from affected ZEP­ holders, no public inquiries, no notice and comment process, and no meaningful engagement with civil society on these issues.

10. The effect is that tens of thousands of Zimbabwean nationals face the real risk of being left undocumented by and from 31 December 2022. This is in circumstances where conditions in Zimbabwe have not meaningfully improved; the majority of ZEP-holders will be unable to obtain alternative visas in time, even if eligible; and the Department of Home Affairs (DHA) will be inundated with applications, causing further backlogs and delays.

11. The HSF bring this application in the public interest to review and set aside the Minister's decision, in terms of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA), the constitutional principle of legality, and the Bill of Rights.

12. This application is based on five (5) primary grounds:

12.1. First, the Minister's decision was procedurally unfair and procedurally irrational, in the absence of any meaningful public consultation process.

12.2. Second, the decision is an unjustified limitation of the constitutional rights of ZEP-holders and their children.

12.3. Third, the decision was taken without any regard to the impact on ZEP­ holders.

12.4. Fourth, the decision reflects a material error of fact as to the present conditions in Zimbabwe.

12.5. Fifth, the decision is otherwise unreasonable and irrational.

13. At the outset, it is important to emphasise what this application is about and what it is not about.

14. The HSF does not contend that the Minister is obliged to extend exemptions in perpetuity, nor do we argue that ZEP-holders may never have their permits withdrawn.

15. Instead, this application concerns the manner in which the Minister reached his decision to terminate the ZEP and to refuse any further extensions.

16. In the circumstances of this case, where tens of thousands of people have built their lives in reliance on the ZEPs over many years, a decision to terminate the ZEPs had to be taken following a fair process, for good reason, with a meaningful opportunity for ZEP-holders to regularise their status. The hasty, untransparent and ill-considered manner in which the Minister took his decision fails to satisfy these requirements.

17. The HSF is aware of the pending application in African Amity NPC and Others v Minister of Home Affairs and Others, Case Number 51735/2021 pending before this honourable Court, in which the applicants also seek to challenge the Minister's decision. We have carefully considered the amended notice of motion and supplementary founding affidavit which were filed in that application on 15 March 2022. To avoid overburdening these papers, I will provide references to the papers filed on Caselines in the African Amity case, where necessary.

18. While the HSF supports many of the arguments advanced by the applicants in African Amity, it has become necessary to file a separate application. The relief that the HSF seeks differs substantially from that sought in African Amity. The HSF would be unable to obtain such relief as an intervening party or as an amicus curiae.

19. Given the need for the swift resolution of these court applications, well before the

31 December 2022 cut-off, the HSF will seek case management and, if appropriate, the consolidation of these applications to avoid unnecessary duplication of court resources.

20. In the interests of expedition, the HSF waives its rights to obtain a Rule 53 record of the Minister's decision. Nevertheless, the Minister is invited to attach all relevant documents that informed his decision as annexures to his answering affidavit herein.

PARTIES AND STANDING

21. The applicant, HSF, is a non-governmental organisation with a long history of promoting South Africa's commitments to democracy, constitutionalism, rule of law and human rights.

21.1. The decision to terminate ZEPs is one of profound constitutional significance, which threatens the rights of thousands of vulnerable people.

21.2. As an organisation committed to promoting good governance, transparency and accountability, the HSF has a clear interest in the matter and an established record of bringing litigation on matters of public importance such as this.

21.3. The HSF therefore brings this application in the public interest, in terms of section 38(d) of the Constitution.

22. The first respondent is the MINISTER FOR HOME AFFAIRS, cited in his official capacity as the member of the executive responsible for granting exemptions under section 31(2)(b) of the Immigration Act.

23. The second respondent is the DIRECTOR-GENERAL OF THE DEPARTMENT OF HOME AFFAIRS, in his official capacity as the departmental official responsible for the day-to-day operations of the DHA.

24. The respondents are cited care of the State Attorney, Pretoria at SALU Building,

316 Thabo Sehume Street, Pretoria. Service will also be effected at the Department of Home Affairs' offices in Pretoria.

BACKGROUND

The Minister's powers to grant exemptions

25. Section 31(2)(b) of the Immigration Act gives the Minister broad powers to grant individuals or categories of non-citizens the rights of permanent residence. Section 31 provides, in relevant part, as follows:

"31. Exemptions

(2) Upon application, the Minister may under terms and conditions determined by him or her -

(b) grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which would justify such a decision: Provided that the Minister may -

(i) exclude one or more identified foreigners from such categories; and

(ii) for good cause, withdraw such rights from a foreigner or a category of foreigners;

(c) for good cause, waive any prescribed requirement or form; and

(d) for good cause, withdraw an exemption granted by him or her in terms of this section."

26. The Minister's powers to grant such exemptions exist where there are "special circumstances" which justify this decision.

The History of the ZEP

27. The ZEP is the latest in a series of exemptions which have been granted to Zimbabwean nationals residing in South Africa. On each occasion, Zimbabwean nationals were granted the rights to live, work and study in South Africa, in recognition of the dire conditions in Zimbabwe, the plight of undocumented Zimbabwean nationals in South Africa, and the need to relieve the burden placed on the DHA's resources.

The 2009 DZP

28. In April 2009, Cabinet approved the DZP, which allowed Zimbabweans who were already living in South Africa to work, conduct business and study legally. The process of issuing formal documentation under the DZP began in September 2010 and permits emanating therefrom were set to expire at the end of December 2014.

29. In September 2011, the DHA briefed the Portfolio Committee on Home Affairs on the DZP. A summary of that briefing, annexed to this affidavit as Annexure "FA1", reveals the initial rationale behind the DZP.

29.1. The DHA indicated that the DZP was an attempt to "regularize undocumented Zimbabweans currently residing in RSA [and to] relieve pressure from the Asylum Seeker Management system."

29.2. The DHA acknowledged that the DZP was introduced as a response to the pre-existing reality of a "high inflow of Zimbabweans in South Africa."

30. In a statement released on 12 August 2014, the then Minister of Home Affairs, Malusi Gigaba, reflected on the reasons for the DZP. The statement is annexed to this affidavit as Annexure"FA2".

30.1. The former Minister acknowledged that the inflow of Zimbabweans referred to in the DHA's September 2011 briefing had been the result of "political and economic instability" in Zimbabwe and that the DZP represented, "a significant gesture of support and solidarity with our neighbouring country of Zimbabwe in response."

30.2. Minister Gigaba admitted too that the DZP was intended to serve South Africa's interests as well, because it would reduce the pressure that the inflow of Zimbabweans had placed on the DHA. In particular, Minister Gigaba indicated that the DZP would serve the DHA's interest by -

30.2.1. regularising the legal status of Zimbabweans residing in South Africa illegally;

30.2.2. curbing the deportation of Zimbabweans who were in SA illegally;

30.2.3. reducing pressure on the asylum seeker and refugee regime; and

30.2.4. providing amnesty to Zimbabweans who obtained SA documents fraudulently.

30.3. Indeed, in an earlier statement made on 21 May 2014, annexed to this affidavit as Annexure "FA3", Minister Gigaba praised the success of the DZP:

30.3.1. In the course of assuring that DZP permits would not be revoked, Minister Gigaba insisted that the DZP had, "enhanced national security and the management of migration and helped to mitigate the widespread abuse of Zimbabweans illegally in the country."

30.3.2. He went on to assure DZP permit holders and South Africans alike that the DHA was "committed to providing a secured civic and immigration service ensuring all people in the country are safe."

30.4. Furthermore, in his statement of 12 August 2014, the former Minister recalled that the DZP process had been characterised by "productive engagement with ... stakeholder formations."

The 2014 ZSP

31. In August 2014, Minister Gigaba announced that the DZP would be replaced by the ZSP. That permit was set to exist for a period of 3 years, until 31 December 2017.

32. Minister Gigaba made a public statement at the time, annexed to this affidavit as Annexure "FA4", in which he set out in detail the rationale behind his decision not to abruptly terminate the DZP.

32.1. In his statement, Minister Gigaba recognised that more than five years had passed since the DZP was introduced and evidenced an appreciation for the extreme vulnerability of Zimbabweans who had built lives in South Africa while on the DZP. He noted that "the approaching expiry date

[of the DZP] has caused anxiety for many permit holders, particularly those whose are not ready to return to Zimbabwe, as they contemplate their next steps."

32.2. Minister Gigaba made a common-sense assessment that Zimbabwe's recovery would be fraught and protracted, saying that, "while we note the ongoing political and economic recovery [in Zimbabwe] ... we are aware that it will take time for her to fully stabilise."

32.3. Indeed, Minister Gigaba explained the decision to create the ZSP, essentially a decision to extend the DZP - and not to abruptly terminate the DZP - as part of South Africa's commitment to Pan-Africanism and its role in supporting "Africa's stability, security, unity and prosperity."

32.4. In the course of explaining his reasons for the ZSP, the then Minister noted the positive contribution that Zimbabweans had made to South Africa's economic and social life. In particular, he observed that, "Zimbabweans have made notable contributions in our education and health sectors... and in many other sectors".

32.5. Minister Gigaba also clarified the need to "manage our immigration system... in an efficient manner and according to our own deeply embedded human rights ethos."

32.6. He concluded by underlining the need to "continue the productive engagement [with] stakeholder formations during the DZP process four years ago" and expressed a willingness to "work with new stakeholders that have emerged since."

The 2017 ZEP

33. In September 2017, the then Minister of Home Affairs, Zweli Mkhize, announced that the ZSP would be replaced by the ZEP. The ZEP programme was set to expire on 31 December 2021.

34. Minister Mkhize made a public statement at the time, annexed to this affidavit as Annexure"FA5", in which he too set out in detail the rationale behind his decision not to abruptly terminate the ZSP but to create the ZEP instead.

34.1. Minister Mkhize framed his reasons for replacing the ZSP with the ZEP with reference to Oliver Tambo and his concern for, "international solidarity, conscious of the political imperative to build peace and friendship in the continent and in the world as a whole."

34.2. Minister Mkhize, like Minister Gigaba before him, maintained, "that migrants play an important role in respect of economic development and enriching [South African] social and cultural life".

34.3. Moreover, Minister Mkhize emphasised the importance of special dispensations as part of a well-functioning immigration system that serves South Africa's national security. He noted that, "these dispensations have assisted in enhancing national security and the orderly management of migration."

34.4. This was not just Minister Mkhize's personal opinion. It is an obvious echo of the 2017 White Paper on International Migration Policy (White Paper), relevant extracts of which are attached to this affidavit as Annexure"FAG".

The White Paper speaks about the value of special dispensation programmes in the following terms:

"National security and public safety depend on knowing the identity and civil status of every person within a country. In addition, the presence of communities and individuals who are not known to the state but for whom the state has to provide, puts pressure on resources and increases the risk of social conflicts. Vulnerable migrants pay bribes and are victims of extortion and human trafficking. This increases levels of corruption and organised crime. Regularising relationships between states, however, improves stability, reduces crime and improves conditions for economic growth for both countries." (White Paper p 56)

The refusal to extend the ZEPs

35. The DHA made its first public statement on the fate of the 2017 ZEP on 19 November 2021 - just over a month before the ZEP was set to expire. The statement is annexed to this affidavit as Annexure"FA?".

35.1. The statement reflected no attempt to preemptively consider the implications of terminating the ZEP, as the DHA had done previously. Rather, it was prompted by the circulation of misleading reports on the government's stance vis-a-vis the continuation of the ZEP programme.

35.2. The statement revealed that by 19 November 2021, "the matter of the Zimbabwean Exemption Permit [was] still to be considered by Cabinet" and that "the next regular Cabinet sitting" was only scheduled for the following week. This means that the first time that Cabinet sat to consider the fate of the ZEP and the many thousands of people whose lives depended on it, was a mere month before it was set to expire.

36. It has subsequently emerged that the Minister had already taken a decision in September 2021 to terminate the ZEP programme, although that decision and the Minister's reasons therefor were not made public at the time.

36.1. On 20 September 2021, the Director-General made submissions to the Minister motivating for the termination of the ZEP programme. Those submissions were disclosed for the first time in the Minister's answering affidavit in the African Amity matter. I attach a copy of these submissions (memorandum), marked Annexure"FA8".

36.2. While the Director-General recommended the eventual termination of the ZEP programme, he left it to the Minister to determine the duration of any further extension. The Director-General recommended that the Minister, "should consider imposing a condition extending the validity of the

exemptions for a period of three years, alternatively a period of 12 months

and any other period which the Minister deems appropriate". (paragraph 6).

36.3. The Minister approved these submissions, with the handwritten addition that he chose an extension period of only 12 months, without providing any reasons for doing so.

37. On 24 November 2021, Cabinet met to discuss, among many other things, the future of the ZEP. On 25 November 2021, Cabinet released a statement reflecting the decisions made at that meeting. The statement is annexed to this affidavit as Annexure"FA9". The statement simply reflects Cabinet's decision to terminate the ZEP, as one of eleven other decisions taken at the meeting.

38. On 29 November 2021 the DHA issued Immigration Directive 10 of 2021 (Directive 10), annexed to this affidavit as Annexure"FA10".

38.1. In terms of Directive 10, ZEP-holders were to be granted a 12-month "grace period" following the expiry of the ZEP. ZEP-holders were instructed to apply for other mainstream visas provided for in the Immigration Act and its regulations during this grace period.

38.2. The Directive further suggested that banks and other service providers should discontinue provision of services to ZEP-holders as from 1 January 2022 unless ZEP-holders could produce receipts of their applications for mainstream visas.

38.3. Those who proved unsuccessful in their applications, or failed to apply, would have to leave the country at the expiry of the grace period.

39. On 13 December 2021, the DHA issued Immigration Directive 11 of 2021 (Directive 11). The purpose of Directive 11 was simply to withdraw Directive 10. It is annexed to this affidavit as Annexure"FA11".

40. The next public statement made by the DHA came on 29 December 2021, annexed to this affidavit as Annexure "FA12". That statement was made to announce that the DHA had been successful in litigation brought with the intention of challenging the Minister's decision to terminate the ZEP. My understanding is that the challenge was removed from the urgent roll due following the withdrawal of Directive 10.

41. At no stage in the forgoing flurry of announcements and directives were any formal attempts made by the DHA to call for representations from affected ZEP­ holders or to conduct a public participation process.

42. On 5 January 2022, the DHA published a notice in several newspapers (5 January 2022 Notice), annexed to this affidavit as Annexure "FA13", informing all ZEP-holders that the Minister had exercised his powers in terms of section 31(2)(d) of the Immigration Act and had decided not to extend the ZEP.

43. On 7 January 2022, the Minister published Immigration Directive 1 in the Government Gazette (Directive 1 of 2021). The numbering of this directive appears to be an error, but I note that in the African Amity litigation the Director­ General has insisted that the numbering is correct. This directive is annexed to this affidavit as Annexure"FA14". The directive stated that:

43.1. The Minister had "decided to extend the Zimbabwean exemptions granted to Zimbabwean nationals for a period of 12 months".

43.2. This 12-month extension was "to allow the holders thereof to apply for one or other visas provided for in the Immigration Act that they may qualify for'.

43.3. The Minister directed that no action may be taken against ZEP-holders during the 12-month period.

44. On 7 January 2022, the DHA also issued a press statement, annexed to this affidavit as Annexure "FA15" to "set the record straighf' and elaborate on the Minister's reasons for his decision not to extend the ZEP. The Minister's reasons are based on the following submissions made to him by the Director-General of the DHA-

44.1. that the exemptions granted to Zimbabwean nationals have always been a "temporary measure, pending improvement of the political and economic situation in Zimbabwe";

44.2. that the DHA has limited financial and human resource capacity to deal with extending exemptions;

44.3. that South Africa's unemployment rate is increasing;

44.4. that approximately 1900 ZEP-holders applied for waivers, which were rejected, in violation of the conditions of the ZEP; and

44.5. that some of the ZEP-holders have migrated to other visas provided for in the Immigration Act.

45. It is the Minister's decision that is reflected in the 5 January 2022 Notice, Directive

1 of 2022, and the Minister's press statement that is the subject of this application. These are the operative decisions, as the previous Directive 10 has been withdrawn.

The economic and political conditions in Zimbabwe

46. The economic and political conditions in Zimbabwe which necessitated the ZEP and its predecessors have not materially changed.

47. The Minister has failed to disclose what information or sources, if any, he considered in reaching his conclusion that the conditions in Zimbabwe have improved to a point where discontinuing the ZEP is rational or reasonable. This is despite the fact that reports by credible international organisations, such as the World Bank, the IMF, and Human Rights Watch are unanimous that conditions in Zimbabwe remain dire.

48. In 2019, even before its economy was ravaged by the Covid-19 pandemic, Zimbabwe plunged into a recession which saw its economy contract by 8.1% - the greatest economic decline in over a decade.1 The recession saw Zimbabwe's

inflation rate increase to an average of 255% in 2019 and 557% in 2020.² The annual average inflation rate in 2021 stood at 98.5%.³ This is reflected in recent reports by the IMF and the World Bank, relevant extracts of which are attached hereto as Annexures "FA16" and "FA17.1", respectively.

49. The high inflation rate eroded public budgets allocated for health, education and social protection services.⁴ As a result, access to these already scarce services became even more difficult, especially for the poor, who will surely include the many thousands of erstwhile ZEP-holders that will have to return to Zimbabwe.

50. This is all the more troubling given that poverty rates in Zimbabwe exhibit an alarming upward trend, with no sign of abating. In 2009 more than 70% of Zimbabweans lived under the national poverty line with 22.8% (approximately

2.8 million people) living in extreme poverty.5 Extreme poverty increased to 30% of the population in 2017, to 42% in 2019 and 49% in 2020.6

51. On top of the dire economic situation in Zimbabwe, political instability, a major driver of migration to South Africa,7 remains a fixture of Zimbabwean life (see Annexure"FA18"). Since 2002, Zimbabwean political life has been characterised by widespread violence and social upheaval,8 leaving a legacy of fear among ZEP-holders.9

52. There was a marked uptick in violence post the 2018 national elections and the protests which followed. Human Rights Watch reported in its World Report 2021 that Zimbabwean security forces had engaged in "violent attacks, abductions, torture, and other abuses against members of the political opposition and civil society activists." This precipitated a call by President-elect, Emmerson Mnangagwa for an independent investigation to take place. A relevant extract from the Human Rights Watch report is attached as Annexure"FA19".

53. The ensuing Commission of Inquiry into the 1st of August 2018 Post-Election Violence (Commission) found that "the testimonies and submissions that the Commission received indicated that the scope and consequences of the violence that occurred on the 1st of August 2018 were regarded as unprecedented in the history of Zimbabwean elections."¹⁰ A relevant extract of the Commission's report is attached as Annexure "FA20".

54. The Commission went on to make a series of recommendations that were formulated to help prevent future political violence. To date, none of these recommendations have been implemented and no one has been held to account for the human rights abuses which took place after the elections.

55. In its 2021/22 "The State of the World's Human Rights" report, Amnesty International reported that "[t]he human rights situation [in Zimbabwe] continue[s] to deteriorate, with the government demonstrating hostility to human rights defenders, protestors, political activists and journalists" who have been "harassed, arrested, prosecuted and subjected to prolonged pretrial detention". A relevant extract from the report is attached as Annexure "FA21".

56. Amnesty International also reports that as recently as February 2022, the ruling ZANU-PF party threatened to "crush" a coalition of political opponents "like lice", which threat was followed by the brutal killing and injury of its supporters at a political rally. This report is attached as Annexure "FA22".

The barriers to obtaining alternative visas and permits

57. The Minister states that the limited extension of the ZEPs to 31 December 2022 has been granted to allow ZEP-holders to apply for "mainstream" visas and permits under the Immigration Act.

58. This fails to acknowledge the legal and practical barriers to obtaining alternative visas in the brief 12-month period, which include the systemic incapacity and backlogs within the DHA. The result is that many Zimbabwean nationals will face the real risk of being rendered undocumented by the end of the year.

Legal barriers

59. The successive exemption programmes for Zimbabwean nationals were created in recognition of the fact that most exemption-holders would not qualify for "mainstream" permanent residence permits and temporary visas under the Immigration Act. The legal barriers to obtaining these visas have not been eased.

60. In respect of Qermanent residence:

60.1. Under section 26 of the Immigration Act, permanent residence may only be granted to a person who has spent five years in the country, either on a work visa (section 26(a)) or as the spouse of a citizen or permanent resident (section 26(b)).

60.2. However, the conditions attached to ZEPs state that they, "[do] not entitle the holder the right to apply for permanent residence irrespective of the period of stay in the RSA." The DHA appears to interpret this condition as excluding any ZEP-holder from qualifying for permanent residence under section 26, with the result that any application for permanent residence is almost certain to be rejected.

60.3. Under section 27 of the Immigration Act, an application for permanent residence can be made immediately, without a qualifying period of residence, in a very narrow set of circumstances. These circumstances include significant wealth - requiring capital investment of over R5 million, net worth of over R12 million, retirement earnings of over R38,000 a month

- or if a person satisfies the onerous critical skills requirements. Most ZEP-holders would be unable to satisfy these requirements.

61. In respect of temporary residence, sections 11 to 23 of the Immigration Act provide for a range of visas, subject to different qualifying criteria and conditions. Only a few of these visas afford rights to work in the country, which are more difficult to obtain.

62. General work visas, provided for in section 19 of the Immigration Act read with Regulation 18 of the Immigration Regulations, are subject to stringent requirements.

62.1. A person is only eligible if, in terms of Regulation 18(3), the Department of Employment and Labour (Department of Labour) has issued their prospective employer with a certificate confirming, among other things that: (i) despite a diligent search, the prospective employer has been unable to find a suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant; and (ii) the applicant has qualifications or proven skills and experience in line with the job offer.

62.2. Most ZEP-holders and their employers will have difficulty satisfying these requirements. They were not required to obtain these certificates when their employment relationship commenced and may now be unable to provide the necessary proof of qualifications and that no other citizen or permanent resident is suitable for the post.

62.3. It is also uncertain whether ZEP-holders who are currently employed would be considered eligible under Regulation 18(3), as the Regulations only speak of "prospective employers".

62.4. Even if a ZEP-holder and their employer can satisfy these requirements, the burden of obtaining a certificate from the Department of Labour, followed by the assessment of a general work visa application, may significantly delay the final determination of their applications until after 31 December 2022. There is no indication that the Department of Labour has put in place any mechanisms to fast-track these applications, or that it has the capacity to do so.

63. Critical skills visas, regulated under section 19(4) of the Immigration Act read with Regulation 18(5), are even more difficult to obtain.

63.1. First, an applicant must possess critical skills reflected on the list determined by the Minister. Recent amendments to the list, published in the Government Gazette on 2 February 2022, have cut the number of qualifying skills significantly. I attach a copy of this list as Annexure "FA23". This would again exclude almost all ZEP-holders.

63.2. Second, an applicant must obtain confirmation from relevant professional bodies that they have the necessary skills, qualifications, and experience and, where necessary, their foreign qualifications must be verified by the South African Qualifications Authority (SAQA). These processes are time­ consuming and subject to frequent delays. Qualifying ZEP-holders are unlikely to obtain the necessary certifications before the 31 December 2022 cut-off.

64. Business visas, provided for in section 15 of the Immigration Act and Regulation 14, require a minimum capital investment of R5 million from funds sourced from outside the country. This steep capital requirement excludes all but a tiny minority of ZEP-holders. This is not to mention the further regulatory requirements that must be satisfied under Regulation 14, which include obtaining a letter of recommendation from the Department of Trade and Industry and proof of various registrations.

65. Relatives visas, provided for in section 18 of the Immigration Act and Regulation 17, may be issued to members of the immediate family of a citizen or permanent resident. However, these visas do not confer any work rights.

65.1. Applicants must provide proof of kinship, in the form of an unabridged birth certificate and, where necessary, a paternity test.

65.2. Citizens or permanent residents must also provide a prescribed financial assurance, per person and per month, which currently stands at RB,500 per month.

65.3. In many cases, proof of kinship will be difficult to obtain at short notice.

Relatives of ZEP-holders may also not have the means to provide the necessary financial assurances.

65.4. Even if these obstacles are overcome, the absence of work rights would put ZEP-holders to an impossible choice: stay on a relatives visa and face unemployment and destitution or leave the country and break up the family unit.

66. Study visas, regulated by section 13 of the Immigration Act and Regulation 12, would only offer limited protection, where available, and do not confer any work rights.

66.1. The requirements are again onerous, requiring proof of acceptance to a learning institution, proof of sufficient cover, and proof of financial means, among other requirements.

66.2. These visas also carry the significant risk of family separation. Where ZEP-holders are eligible to remain on study visas, these visas would offer no protection to their family members. Equally, where children may be eligible to remain in the country on study visas, but their parents or guardians are not eligible for any visas, families may be forced apart.

67. Section 31(2)(c) of the Immigration Act further allows the Minister to waive any prescribed requirements or forms "on good cause".

67.1. While it may be legally possible for individual ZEP-holders to seek waivers, these applications have to be motivated on an individual basis, usually requiring specialised legal assistance which would not be available to the majority of ZEP-holders.

67.2. Such an individualised process is also not suited to processing tens of thousands of applications from ZEP-holders in a short period.

67.3. The waiver process has also been historically subject to substantial backlogs and delays, which I address below.

68. Individuals could notionally apply to the Minister for further, individual exemptions under section 31(2)(b) of the Immigration Act. However, the Minister's decision to terminate the ZEP programme is a clear indication that any further exemption applications from Zimbabwean nationals are likely to be rejected.

Practical barriers

69. Even where ZEP-holders may be eligible to obtain other visas or permits, they face substantial practical obstacles, which would make it unlikely that their applications for other visas will be processed by the 31 December 2022 deadline.

70. Applications for visas with work rights, waivers, and exemptions are highly complex matters, generally requiring the assistance of specialist immigration consultants and lawyers. These services are scarce and the costs are prohibitive, which would prevent many ZEP-holders from submitting applications in time, or at all.

71. Visa applications are also costly, requiring applicants to pay a fee to the DHA and a service fee to VFS, OHS' agent. I attach the schedule of these fees, marked Annexure"FA24".

72. Most significantly, ZEP-holders will face systemic backlogs in the visa application process, which are well-documented.

73. In Department of Home Affairs and Others v De Saude Attorneys and Another

[2019] ZASCA 46; [2019] 2 All SA 665 (SCA), the Supreme Court of Appeal addressed the DHA's unreasonable delays in processing hundreds of applications for temporary residence visas, permanent residence, waivers, and internal appeals. The SCA described conditions of "prolonged and enduring departmental dysfunction" which had resulted in delays of years rather than months. While the Immigration Act requires expedition in issuing visas and permanent residence permits, the reality, as described by the SCA, was one of "sloth on a grand scale".

74. These pre-existing backlogs have now been aggravated by the Covid-19 pandemic and two years of lockdowns, which saw the DHA suspending many immigration services for extended periods. For example, the DHA stopped processing all permanent residence applications from March 2020 until January 2022, contributing to the current delays.

75. The ongoing effect of these backlogs is reflected in the frequent extensions that have been granted to current visa-holders whose documents have expired, due to the failure to process their applications for new visas timeously. Rolling extensions have been granted since 2020 due to the increasing delays.

76. Most recently, on 1 April 2022, the Minister published a circular titled "Temporary Measures in Respect of Foreign Nationals in Light of a Backlog Being Experienced in Processing Outcomes on Waiver Applications and Visa Applications". This circular granted a further blanket extension until 30 June 2022, due to the admitted "backlog in processing outcomes on waiver- and visa applications." I attach a copy of that circular as Annexure"FA25".

77. Given these backlogs, it is unlikely that the DHA could process ZEP-holders' applications for alternative visas and waivers by the end of the year.

78. The prospect of over 178,000 ZEP-holders applying for "mainstream" visas, permits, and waivers also threatens to contribute to the systemic delays in immigration services, further overburdening a strained system.

79. The directives and press statements issued by the DHA in announcing the termination of the ZEP are entirely silent on these practical challenges and the admitted backlogs. In his January press statement, the Minister merely stated that a "special team" had been set up within the DHA to address the "influx of applications for various visas by the Zimbabwean nationals". No details have been provided as to how the DHA intends to address this "influx", what resources have been made available, or what impact this diversion of resources will have on existing backlogs in processing visa and permit applications.

Impact on the asylum application system

80. In the absence of meaningful access to mainstream visas, many ZEP-holders are likely to apply for asylum under the Refugees Act.

81. As the history of the exemption programmes shows, exemption permits for Zimbabwean nationals were originally introduced, in part, to alleviate the pressure on this asylum system.

82. Thirteen years later, the systemic incapacity in the asylum system remains and will be made worse by the Minister's decision to terminate ZEPs. The existing backlogs in asylum determinations are reflected in the DHA's 2019 and 2020 statistics, provided before the Covid-19 lockdowns, which indicated:

82.1. 3,656 outstanding cases before Refugee Status Determination Officers, in which applicants were awaiting either an initial interview or decision;

82.2. 124,000 active cases and 29,967 inactive cases in which applicants were awaiting an appeal date or a decision from the Refugee Appeals Authority;

82.3. 38,185 active cases at the Standing Committee for Refugee Affairs level in which applicants were awaiting a decision on review.

83. This information was provided by the Minister in response to questions in Parliament (Question NW2488, 17 December 2020), which I attach as Annexure "FA26". Updated numbers were provided to the Portfolio Committee on Home Affairs of 2 March 2021, as summarised by the Parliamentary Monitoring Group, which I attach as Annexure "FA27".

84. On the most conservative estimate, it would take many years to clear these backlogs. The effect is that asylum seekers frequently wait years for a final decision and it is not uncommon for decisions to take more than a decade.

85. These delays have now been compounded after two years of lockdowns. All Refugee Reception Offices in the country were closed on 26 March 2020 and have only recently reopened in May 2022. During that time, no new asylum applications were processed, with the result that any person who arrived in the country seeking asylum since 2020 will now be attempting to gain access to the few remaining Refugee Reception Offices.

86. There is no legal impediment to ZEP-holders applying for asylum, which will further contribute to the pressure on the asylum system. The fact that ZEP­ holders may have delayed in submitting an asylum application is not an obstacle, as recently confirmed by the Constitutional Court in Abare v Minister of Home Affairs (2021] ZACC 50.

87. Even if an existing ZEP-holder may not be successful in their asylum application, the final determination of their status will likely take many years. If their claim is rejected at first instance by a Refugee Status Determination Officer, they will be entitled to an appeal before the Refugee Appeal Authority or a review before the Standing Committee for Refugee Affairs, where backlogs and delays are most acute.

88. In these circumstances, the termination of ZEPs on short notice is likely to contribute to the systemic dysfunction within the asylum system.

(

The impact of the decision on ZEP-holders

89. The decision by the Minister to terminate the ZEP programme, in circumstances where it is not certain if ZEP-holders can obtain other visas before 12 December 2022, means that thousands of ZEP-holders are at risk of:

89.1. Being left undocumented which, in turn, exposes them to the dangers of xenophobic attacks, human trafficking, extortion, and the threat of arrest, detention and deportation;

89.2. Losing their employment, businesses, and homes;

89.3. Losing access to banking services, pension funds, and other financial services;

89.4. Being separated from their families and children;

89.5. Disrupting the lives of their children, who face the risk of being denied access to schooling, medical care, and social services; and

89.6. Being forced to return to Zimbabwe, where the political and economic conditions there have not materially improved.

90. The impact of the Minister's decision is illustrated by the experiences of four ZEP­ holders, who have deposed to affidavits in support of this application.

91. Due to the recent spate of xenophobic attacks and intimidation of foreign nationals in South Africa, the full names and identities of these individuals have been redacted to protect them and their families. Unredacted versions of their

affidavits will be provided to the Minister and the court. 

92. GN is a 50-year-old teacher living in Johannesburg. She was first issued with the DZP in 2012 and is currently a ZEP-holder.

93. GN trained as a teacher in Zimbabwe, before she was forced to flee the country in 2006. She initially worked as a domestic worker for seven years, before having her teaching qualifications accredited in South Africa.

94. Since 2013, GN has worked as a foundation phase teacher. She now holds the position of head of department for the foundation phase at her school.

95. GN fears that if she loses her job, she will leave behind learners and other teachers who have come to depend on her. Teachers are not on the critical skills list, and it would be exceptionally difficult for her to obtain a general work visa, due to the difficulty of proving that there are no other suitably qualified candidates. GN states that, "my departure will set my students back in their learning and development at a critical age."

96. "Teaching children is my passion", GN explains, "I am so grateful that I was able to get back on my feet after nearly seven years as a domestic worker, so that I can once again contribute to the lives of children as a teacher." If she were forced to return to Zimbabwe, GN would have to abandon a life she has so diligently built in South Africa over fifteen years.

97. Fearing for her safety and livelihood if she were forced to return to Zimbabwe, GN intends to exhaust all available options, including applying for asylum again.

Due to the backlogs, she fears that she will "become a part of a very dysfunctional system". 

EWS

98. EWS is a 52-year-old ZEP-holder, residing in Johannesburg. He graduated in industrial engineering from the National University of Science and Technology in Bulawayo. He is married with five children, who remain in Zimbabwe. His wife and children are dependent on him for financial support and day-to-day essentials.

99. EWS arrived in South Africa in 2009, after suffering political persecution in Zimbabwe. He successfully applied for the DZP permit and it was issued to him in August 2012. In 2020, EWS and his three South African partners registered a company that (a) provides commodity broking services in the mining space and

(b) offers purchase order financing for government tenders. The company has successfully provided financing to local businesses.

100. EWS reasonably fears that he will not be able to secure an alternative visa before 31 December 2022. He is considering applying for a critical skills visa or a business visa, but he fears that he will be unable to meet the stringent requirements for these visas in time and he cannot afford the lawyers' fees required to pursue these applications. EWS adds that "even if I could somehow afford to work my way through the visa application system, I am very concerned that the system is so dysfunctional that I could be left in the lurch for many years."

101. EWS also intends to apply for asylum as a last resort, due to his fears for his safety if he were forced to return to Zimbabwe.

DJN

102. DJN arrived in South Africa in 2010, at a time when the Zimbabwean economy was in free-fall. Shortly after arriving, DJN applied for, and obtained, a DZP and, subsequently, a ZSP.

103. DJN is a qualified timber merchant who has worked in that capacity both in Zimbabwe and locally here in South Africa.

104. Without a ZEP, DJN will have no choice but to leave behind the life, and business, he has built in South Africa. Although qualified as a timber merchant, DJN does not possess the exceptional skills and qualifications he would require to obtain a work visa under the Immigration Act. Nor does he possess the necessary capital to qualify for a business visa.

105. At the same time, DJN faces dim prospects back in Zimbabwe. The economy he left behind in 2010 remains in tatters. Jobs are scarce and DJN sees little prospect in starting his own timber business back home. Without either employment or entrepreneurial prospects, he will be unable to provide for his family.

106. After his brother was imprisoned for his association with the opposition political party, LM was pressed to make the difficult decision to leave behind the deteriorating political and economic situation in Zimbabwe.

107. When LM first arrived in Cape Town in 2005, he worked as a waiter at a Spur restaurant and was swiftly promoted to full-time manager. After applying for asylum and obtaining an asylum-seeker permit, LM obtained a DZP in 2011. In the intervening period, he met the woman who is now his wife and had two daughters, who live with him in Cape Town and attend school there.

108. In 2018, LM partnered with his wife to buy into a restaurant franchise. When the restaurant shuttered its doors due to the Covid-19 pandemic, LM began work as an Uber-driver in order to support his family. He still has aspirations to start his own business, but is hamstrung by his inability to obtain funding, which is due in part to his uncertain immigration status.

109. Like DJN, LM lacks the critical skills and capital to obtain alternative immigration status under the Immigration Act. To remain in South Africa, LM's only option would be to revert back to asylum-seeker status, knowing full well the logistical and socio-political challenges asylum seekers face in this country.

110. A withdrawal of the ZEP will abruptly terminate the life LM and his wife have known in South Africa and uproot the lives of their children, now denied access to basic education and healthcare in this country.

111. Relevant supporting affidavits in respect hereof accompany this application.

THE LEGAL BASIS OF THIS APPLICATION

112. The Minister's decision to terminate the ZEP and to refuse any extensions beyond 31 December 2022 is subject to scrutiny on three legal bases:

112.1. First, it is administrative action which is reviewable under PAJA.

112.2. Second, even if PAJA does not apply, it is an exercise of public power that is reviewable under the section 1(c) constitutional principle of legality.

112.3. Third, to the extent that it limits constitutional rights, any limitation must be reasonable and justifiable under section 36 of the Constitution.

113. The grounds of review that follow are all applicable regardless of the standard of review that is applied.

FIRST GROUND: PROCEDURAL UNFAIRNESS AND PROCEDURAL IRRATIONALITY

114. ZEP-holders, civil society, and the general public were not notified of the Minister's intended decision nor were they afforded a meaningful opportunity to make representations before the Minister took his decision.

115. Tellingly, the Minister's press statement of 7 January 2022 refers to internal discussions between the Minister and "affected units within the DHA"11 (attached hereto as Annexure"FA28") but is silent on the participation of ZEP-holders and the public in the decision-making process. Indeed, the Minister himself admits that the only "inputs" into his decision regarding the extension of ZEPs in September 2021 were provided by DHA officials and a submission from the Director-General of the DHA.

116. This decision-making process failed to meet the most basic requirements of procedural fairness under sections 3 and 4 of PAJA. It equally resulted in a procedurally irrational decision, that runs counter to constitutional principles of transparency and accountability.

Procedural unfairness and irrationality in relation to ZEP-holders and civil society

117. In terms of section 3 of PAJA, administrative action which materially and adversely affects an individual's rights or legitimate expectations must be procedurally fair, requiring, at minimum:

117.1. a clear statement of the administrative action;

117.2. adequate notice of any right of review or internal appeal; and

117.3. a reasonable opportunity to make representations.

118. The Minister and Director-General have denied categorically that they bore any duty to consult with ZEP-holders.12 The Director-General has further expressed the view that there was "no need to respond' to correspondence from affected persons regarding the status of the ZEP renewal on the basis that "he would revert once the decision has been taken".13

119. Indeed, in the Director-General's memorandum to the Minister of 20 September 2021, which formed the basis of the Minister's decision, there is no mention whatsoever of consultation with ZEP-holders or civil society organisations that represent their interests.¹⁴ Instead, the interests of civil society and ZEP-holders were referred to obliquely in a passing comment, when the Director-General noted that "[l]itigation is expected from the Zimbabwean nationals and other interest groups".15

120. Given the grave and lasting impact of the extension decision on the rights of ZEP-holders both individually and as a group, a rational and procedurally fair decision to extend the ZEP until 31 December 2022 would require, at the very least, that ZEP-holders and civil society organisations representing their interests be afforded an opportunity to make representations on the proposed extension before it was approved. ZEP-holders and civil society were well-placed to inform the Minister on:

120.1. Whether the circumstances in Zimbabwe which justified the exemption programme had changed;

120.2. The particular impact that the decision not to extend the ZEPs would have on individual ZEP-holders, as well as their families and children;

120.3. Whether a 12-month extension until 31 December 2022 would provide them with sufficient time to obtain alternative status under a permit or visa under the Immigration Act;

120.4. Whether a longer extension period would be more suitable to protect their rights and interests.

121. The purpose of the Minister's decision to extend until 31 December 2022 was to afford ZEP-holders further protection while they "regularised" their status in line with the Immigration Act. In seeking to take this decision without hearing whether the ZEP-holders require further protection, the Minister acted in a manner that was both procedurally unfair and procedurally irrational in the circumstances.

122. Moreover, the Minister's reasons for not engaging in any form of consultation process with ZEP-holders reflect further irrationality. In the answering affidavit in the African Amity matter, the Director-General asserts that because the Minister was dealing with "a category of foreigners" there was "no duty imposed on him to consult with the persons to whom the exemptions are issued."16 The suggestion that foreign nationals have no entitlement to consultation, where decisions gravely affect their rights and interests, reflects base prejudice. This reason alone renders the decision inherently unlawful, arbitrary, and irrational.

123. The Director-General's notice of 31 December 2021, published on 5 January 2022, notified ZEP-holders of the Minister's decision and invited them to make representations, after-the-fact. In the circumstances, it could hardly have been issued for the purpose of eliciting meaningful representations from affected parties and, indeed, the Minister himself has conceded that press statements and notices were only issued for the more limited purpose of "clear[ing] the confusion which was existing at the time".17

124. Inviting representation on a decision that has already been taken runs counter to the very purpose of procedural fairness and procedural rationality, which is to ensure that an administrative functionary has an open mind and a complete picture of the facts and circumstances that have a bearing on the administrative action that is being contemplated.

Procedural unfairness and irrationality in respect of the public at large

125. Section 4(1) of PAJA stipulates that where administrative action "materially and adversely affects the rights of the public" an administrator owes a duty of procedural fairness to the public at large.

126. In those circumstances, the administrator has five options: either hold a public inquiry (which includes a public hearing on the proposed administrative action, and public notification of the inquiry); follow a notice and comment procedure (which involves publishing the proposed action for public comment and written representations on the proposal); follow both the public inquiry and notice and comment procedures; follow a fair but different procedure in terms of an empowering provision; or follow another appropriate procedure which gives effect to the right to procedural fairness in section 3 of PAJA (for example, granting hearings to the entire group affected by the proposed action).

127. The Minister himself stated in his 7 January 2022 press statement that his decision to extend the ZEP until 31 December 2022 and to refuse to grant further extensions "impacts on national security, international relations, political, economic and financial matters".¹⁸

128. This statement is not surprising: if no further extensions are granted, it is likely that thousands of productive members of South African society will face the risk of being undocumented at the end of this year. The impact on the economy and society is manifest.

129. The 2017 White Paper further underlines the broad public significance of special dispensation programmes, like the ZEP, noting that these programmes promote national security and public safety, alleviate burdens on public resources, and help to combat corruption, organised crime and human trafficking.¹⁹

130. In the circumstances, the Minister owed a further obligation of procedural fairness to the public at large. His failure to engage at all with the public also renders the decision to extend the ZEPs procedurally irrational.

Openness, accountability and transparency

131. The fact that the Minister took such consequential decisions behind closed doors, without following a fair and rational public participation process, further violates the fundamental principles of accountability, responsiveness, and openness required in terms of sections 1 and 195 of the Constitution.

Summary

132. Accordingly, the Minister's decision falls to be reviewed and set aside in terms of:

132.1. Section 6(2)(c) of PAJA, as the decision was procedurally unfair in the respects described above;

132.2. Section 6(2)(f)(ii) and the principle of legality, as the absence of any fair process rendered the decision procedurally irrational;

132.3. Section 6(2)(e)(iii) and the principle of legality, as the failure to conduct any fair process meant that the Minister failed to take into account relevant considerations;

132.4. Section 6(2)(i) of PAJA and the principle of legality, as this failure is otherwise unconstitutional and unlawful.

SECOND GROUND: THE DECISION UNJUSTIFIABLY LIMITS CONSTITUTIONAL RIGHTS

133. In granting exemption permits to Zimbabwean nationals for more than 13 years, the Minister's predecessors recognised that these permits were necessary to protect the rights of vulnerable people. The decision to strip ZEP-holders of this protection from 31 December 2022 amounts to an unjustified limitation of rights.

Limitation of rights

The right to dignity and related rights

134. The right to human dignity is a right to a life of dignity. This right encompasses the enjoyment of employment opportunities; access to health, educational and other facilities; being protected from deportation and thus from a possible violation of her or his right to freedom and security of the person; and communing in ordinary human intercourse without undue state interference.

135. The exemption permits make a life of human dignity possible for ZEP-holders.

The decision to terminate ZEPs with effect from 31 December 2022 will strip thousands of Zimbabwean nationals of such a life, as it will render them undocumented.

136. A key component of the right to dignity is the right to a meaningful family life.

Many Zimbabwean ZEP-holders have started families in South Africa and are now at risk of being separated from their partners and children. As explained above, relatives visas, which do not include work rights, offer a painful choice: remain with family and face impoverishment or leave and break up the family unit.

137. Dignity also entails the agency and autonomy to make the choices that shape the trajectory of a life. Since the exemption permits were first granted in 2009, ZEP-holders have forged lives here in South Africa. The four ZEP-holders who have filed supporting affidavits have all been in the country for over a decade, have invested in businesses and careers, have built families, have children, and are breadwinners taking care of their families. Their ambitions and life plans are now intertwined with decisions taken in the expectation that the ZEP would not be terminated without due warning or consultation. The granting of a limited extension of the ZEP for only 12 months, without due warning, and without a proper process, devalues and casts aside the lives and life choices that ZEP­ holders have made since they arrived in South Africa.

138. Crucially, the agency to make life choices is rendered nugatory if one is denied due warning of decisions which threaten life-altering consequences. Meaningful engagement and consultation in advance of such decisions not only allows a person the possibility of affecting their outcome - it also affords an opportunity to plan and re-organise one's life in anticipation of the decision being implemented.

The rights of children

139. The unconstitutional effect of allowing the ZEP to terminate is not confined to adults, as it also impacts on the rights of dependent children.

140. This is illustrated by LM and his family. LM and his wife are both ZEP-holders, with two young daughters aged 6 and 10. The children were born in South Africa, attend primary school, and have known no other home. In his supporting affidavit, LM explains that:

"It is not just me who will lose the rights and privileges that come with the ZEP, my wife and children will also lose their hopes and dreams of a future. We will become undocumented migrants because we do not qualify for any other visa in terms of the Immigration Act. My children will lose access to quality basic services such as education and healthcare."

141. Section 28(2) of the Constitution provides that "a child's best interests are of paramount importance in every matter concerning the child."

142. All proceedings, actions or decisions in matters concerning children must respect the child's right to dignity, treat the child fairly and equitably and protect the child from unfair discrimination on any ground.

143. The decision to terminate ZEPs violates several established principles underpinning the best interests of the child.

143.1. First, it is not in the best interests of children to be undocumented for extended periods or to be separated from their parents and siblings, which, given the legal and factual barriers identified above, is likely to occur if the termination decision is allowed to stand.

143.2. Second, termination of all ZEPs without regard to the individual circumstances of permit holders violates the principle that there should be individualised decision-making in all matters concerning children.

143.3. Third, and relatedly, it would also violate the principle that children must be seen as individuals with their own inherent dignity and rights, not as mere appendages of their parents or caregivers.

143.4. Fourth, termination without a proper process violates the duty to ensure that children are heard in all matters concerning their interests, either through their parents, representatives or in person, before actions are taken that have an adverse effect on their rights and life prospects.

Section 36 justification analysis

144. The onus falls on the Minister to demonstrate that these limitations of constitutional rights are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

145. The reasons advanced by the Minister in his press statement on 7 January 2022, accompanying Directive 1 of 2022, fail to establish any justifiable limitation of these rights. In that statement, the Minister has advanced five primary justifications.

146. First, the Minister contends that ZEP "was and has always been a temporary measure, pending improvement of the political and economic situation in Zimbabwe."²⁰

146.1. The fact that exemptions have been extended over a period of more than 13 years demonstrates that these exemptions are anything but temporary, reflecting the ongoing crisis in Zimbabwe.

146.2. The Minister has failed to provide any evidence to suggest that the conditions in Zimbabwe have improved, nor has he explained how it could be said that the special circumstances that warranted the exemptions for over 13 years have materially changed.

146.3. As demonstrated above, conditions in Zimbabwe have not meaningfully improved, leaving Zimbabwean nationals with the hard choice of remaining in South Africa as undocumented persons or returning to a country in which they cannot sustain themselves and where they may face serious threats to their lives and physical security.

147. Second, the Minister suggests that the exemptions were initially introduced, in part, to alleviate the burden on the refugee status determination system, as thousands of Zimbabwean nationals had applied for asylum. This provides no justification for the withdrawal of the ZEPs at this stage.

147.1. There remain substantial backlogs in the refugee status determination system, as detailed above.

147.2. The termination of the ZEPs will no doubt exacerbate this problem, as there is nothing preventing the majority of ZEP-holders from applying for asylum at this time.

148. Third, the Minister refers to budgetary constraints within the DHA and states that a decision has been taken to "prioritise" services for South African citizens.²¹

148.1. There is no connection between the refusal to extend ZEPs beyond 31 December 2022 and these alleged budgetary constraints.

148.2. The Minister has already taken a decision to extend existing ZEPs to 31 December 2022, so any costs associated with an extension have already been incurred. No explanation has been furnished as to why a longer extension, beyond the end of 2022, would be more burdensome.

148.3. The decision to discontinue ZEPs will lead to an increased burden on the DHA as ZEP-holders attempt to find other ways of remaining in South Africa legally, which is bound to put more pressure on strained systems. This is not to mention the enormous capacity that will be spent on arresting, detaining and deporting potentially thousands of erstwhile ZEP­ holders, and their family members, who may not qualify for other legal means of staying in South Africa.

148.4. Finally, on the figures provided by the Minister himself, the ZEP programme has paid for itself. The alleged R188,7 million cost to the DHA of providing exemptions between 2010 and 2020 would have been far exceeded by the fees paid by permit holders.22 The ZEP alone would have brought in fees of over R194 million, as all 178,412 ZEP-holders were required to pay a R1090 application fee. This does not include the fees earned by the DHA under the DZP and ZSP, for which no figures have been provided by the Minister.

149. Fourth, the Minister cites the unemployment rate in South Africa as a further justification, stating that South Africa's unemployment rate increased by 1.8% bringing the overall rate to 34%.

149.1. The spike in the unemployment rate has nothing to do with the ZEPs, as it is the product of the Covid-19 pandemic, lockdowns, and related economic shocks.

149.2. No evidence has been presented to suggest that the termination of the ZEP will reduce unemployment among South African citizens and permanent residents. The Director-General's submissions to the Minister, which provided the basis for his decision, did not refer to any studies, reports, or other evidence.

149.3. On the contrary, the Minister's predecessors and the government's own White Paper acknowledged that ZEP-holders have made significant contributions to the economy and job creation.

149.3.1. I refer again to the statements of Minister Gigaba in introducing the ZSP in 2014, who acknowledged that "Zimbabweans have made notable contributions in our education and health sectors ... and in many other sectors".

149.3.2. Equally, in introducing the ZEP in 2017, Minster Mkhize emphasised that "[w]e believe that migrants play an important role in respect of economic development and enriching social and cultural life." He added that the ZEP programme "will assist greatly in advancing the objectives of the National Development Plan, Vision 2030 particularly in respect of the focus on the economy, attracting critical skills into the country and ensuring transfer of skills to our citizens for better employment prospects."

149.3.3. This is in accordance with the 2017 White Paper, which emphasised that special dispensations, such as the ZEP, contribute to economic growth.23

150. The Minister's justifications say not one word about the impact of the termination of the ZEP on affected Zimbabwean nationals and their families, nor is there any effort to explain why the alleged purposes justify the severe limitation of their rights.

151. This silence on the impact, coupled with the absence of any meaningful justification, threatens to reinforce and entrench xenophobic attitudes toward Zimbabwean nationals. It suggests that their lives and rights are of lesser concern, and may be disregarded entirely in pursuit of political expediency. It is also seemingly at odds with the Immigration Act's preamble, which expresses a commitment to promote "a human-rights based culture of enforcemenf'.

152. This unavoidable impression is reinforced by the Minister's press statement, in which he claimed to have received "overwhelming support of the decision by the South African citizens" expressed in messages "widely circulated on social media."²⁴ The Minister regarded this public support as somehow demonstrating that his decision was lawful and reasonable.

153. A brief search of social media posts responding to the Minister's announcements turns up countless messages expressing xenophobic attitudes, crude stereotypes, and hate speech directed at Zimbabwean nationals. I attach, as Annexure "FA29", a small sample of these messages. The Minister could not have been unaware of this outpouring of prejudice. His silence on the matter comes dangerously close to an endorsement.

154. In any event, public sentiment and majoritarian impulses, no matter how strongly felt, can never count as valid justifications for the violation of fundamental rights. This is particularly so when the victims of rights violations are foreign nationals, who are a vulnerable minority group who lack any political muscle in South Africa.

155. There are ample, less restrictive means available to government to achieve its stated objective of winding down the ZEP programme while protecting the rights of ZEP-holders. At minimum, this required:

155.1. Prior notification of the Minister's intentions and ample warning;

155.2. A fair public consultation process;

155.3. Sound justification, requiring a proper assessment of the conditions in Zimbabwe and the impact that this decision will have on ZEP-holders;

155.4.A meaningful opportunity for ZEP-holders to regularise their status, given the well-documented backlogs and delays within the Department of Home Affairs.

156. The Minister's decision is therefore an unjustified limitation of rights, which must be declared unconstitutional and invalid in terms of section 172(1)(a) of the Constitution. It also stands to be reviewed and set aside in terms of section 6(2)(i) of PAJA, as it is unconstitutional and unlawful.

THIRD GROUND: FAILURE TO CONSIDER THE IMPACT ON ZEP-HOLDERS AND THEIR CHILDREN

157. As already noted, the Minister's public statements indicate that no attempt was made to assess the impact on ZEP-holders and their children before taking the decision to terminate the ZEP. This is reinforced by the Director-General's September 2021 submissions to the Minister, which are entirely silent on this impact.

158. A decision of this consequence, impacting over 178,000 ZEP-holders, required proper information on who would be affected, to what degree, and what measures were in place to ameliorate this impact. It also required careful assessment of the current conditions in Zimbabwe.

159. Without this information, the Minister would plainly have ignored relevant considerations. It would also render any decision irrational and unreasonable.

160. Accordingly, the impugned decisions also fall to be set aside in terms of:

160.1. Section 6(2)(e)(iii) of PAJA and the principle of legality, as relevant considerations were not considered.

160.2. Section 6(2)(f)(ii) and the principle of legality, as the absence of this information rendered the decision irrational.

160.3. Section 6(2)(h) of PAJA, as a decision taken in the absence of such inquiries is unreasonable;

160.4. Section 6(2)(i) of PAJA and the principle of legality, as this failure is otherwise unconstitutional and unlawful.

FOURTH GROUND: CONDITIONS IN ZIMBABWE

161. The stated purpose of the exemptions for Zimbabwean nationals was to afford protection "pending improvement of the political and economic situation in Zimbabwe".

162. In his September 2021 submissions to the Minister, the Director-General justified the termination of the ZEP programme on the basis that "[t]he political and economic situation has improved in Zimbabwe since 2009".²⁵

163. The Minister approved the Director-General's submissions in full and adopted the Director-General's reasons in his press statement on 7 January 2022.

164. As outlined above, conditions in Zimbabwe have not improved and, in many respects, have become worse. By 2020, the percentage of Zimbabweans living in extreme poverty in 2009 had more than doubled. Political violence, instability, and social upheaval have also remained constant.

165. Therefore, the Minister's decision is based on a material error of fact as to the conditions in Zimbabwe. In failing to consider the true facts, the Minister has also overlooked relevant considerations and has taken irrelevant considerations into account.

166. The decision to terminate the ZEP programme, while conditions in Zimbabwe remain dire, is also irrational and unreasonable, as it bears no connection to the stated protective purpose of the ZEP programme.

167. Accordingly, the Minister's decision also falls to be set aside in terms of:

167.1. Section 6(2)(e)(iii) of PAJA and the principle of legality, as the decision was based on a material error of fact as to the present conditions in Zimbabwe, relevant considerations were overlooked, and irrelevant considerations were taken into account.

167.2. Section 6(2)(f)(ii) of PAJA and the principle of legality, as the decision was not rationally connected to the purpose for which it was taken or the reasons given by the Minister;

167.3. Section 6(2)(h) of PAJA, as the decision is otherwise unreasonable.

FIFTH GROUND: THE DECISION IS OTHERWISE UNREASONABLE AND IRRATIONAL

168. The Minister's decision was also irrational and unreasonable in a range of further respects.

169. First, the Minister has failed to offer any explanation for why he chose a limited extension of only 12 months, as opposed to the period of three years initially suggested by the Director-General in his September 2021 submissions. The absence of any explanation itself renders the decision irrational and unreasonable.

170. Second, once the Minister acknowledged that some form of extension was necessary to allow ZEP-holders a measure of protection, it was necessary for the Minister to apply his mind to whether, and for how long, ZEP-holders require that protection. The Minister nevertheless took the decision without affording ZEP-holders an opportunity to place their personal circumstances before the Minister, and without any investigation into the practicalities of migrating ZEP­ holders to permits and/or visas under the Immigration Act. His failure to do so rendered his decision to extend the permits by only 12 months arbitrary and irrational.

171. Third, there is also a clear disjuncture between the Minister's professed reasons for the decision and the impact that a limited 12-month extension will have.

171.1. Although intended to address budgetary and capacity constraints within the DHA, the refusal to extend ZEPs beyond 31 December 2022 is poised to increase backlogs at the DHA.

171.2. Moreover, to the extent that the 12-month extension is intended to afford ZEP-holders sufficient time to regularise their status in line with the Immigration Act, it is in fact capable only of thrusting ZEP-holders back into an overburdened immigration system, whose applications for alternative immigration status are unlikely to be determined within the 12- month extension window. In the process, the immigration system will only become more overburdened.

172. Finally, the decision to wind down the entire ZEP programme is not rationally related to the broader purpose of the Immigration Act, which is to promote "a human rights-based culture of enforcemenf' and the stated purpose of the exemption regime, which is to provide Zimbabweans with rights to live and work in South Africa pending improvement in the political and economic situation in Zimbabwe.

173. Apart from being irrational, the decision was also unreasonable in the circumstances. In view of the barriers to obtaining a new visa or permit under the Immigration Act, extending the ZEP until 31 December 2022 is not reasonably capable of achieving its objective of alleviating burdens on the DHA and affording ZEP-holders sufficient time to regularise their status in line with the Immigration Act.

174. Accordingly, the Minister's decision also falls to be set aside in terms of:

174.1. Section 6(2)(f)(ii) of PAJA and the principle of legality, as the decision was not rationally connected to the purpose for which it was taken or the reasons given by the Minister;

174.2. Section 6(2)(e)(iii) of PAJA and the principle of legality, as relevant considerations were overlooked and irrelevant considerations were taken into account;

57

174.3. Section 6(2)(h) of PAJA, as the extension is not reasonably capable of achieving its purpose and is therefore unreasonable; and

174.4. Section 6(2)(i) of PAJA and the principle of legality, as this irrationality and unreasonableness are otherwise unconstitutional and unlawful.

REMEDY

175. The applicants seek a declaration that the Minister's decision is unconstitutional, unlawful and invalid. That is the mandatory relief that is required under section 172(1)(a) of the Constitution.

176. It is just and equitable to set aside the decision and to remit it back to the Minister to make a fresh decision, following a proper, procedurally fair process that complies with the requirements of sections 3 and 4 of PAJA.

177. I stress that this order is not intended to interfere with the extension of ZEP permits until 31 December 2022 or the further protections afforded by the Minister's Directive 1 of 2021. This order is solely directed at the Minister's decision to terminate ZEPs and not to grant any further extensions beyond 31 December 2022.

178. It is further just and equitable to grant an appropriate interim order, to protect the rights of ZEP-holders while the Minister conducts a fair process and makes a fresh decision.

179. This interim relief would entail that pending the conclusion of a fair process and the Minister's further decision:

179.1. Existing ZEPs shall be deemed to remain valid;

179.2. ZEP-holders will continue to enjoy the protections afforded by Directive 1 of 2022, namely that:

"1. No holder of the exemption may be arrested, ordered to depart or be detained for purposes of deportation or deported in terms of section 34 of the Immigration Act for any reason related to him or her not having any valid exemption certificate (i.e permit label I sticker) in his or her passport. The holder of the exemption permit may not be dealt with in terms of sections 29, 30 and 32 of the Immigration Act

2. The holder of the exemption may be allowed to enter into or depart from the Republic of South Africa in terms of section 9 of the Act, read together with the Immigration Regulations, 2014, provided that he or she complies with all other requirements for entry into and departure from the Republic, save for the reason of not having valid permit indicated in his or her passport; and

3. No holder of exemption should be required to produce-

(a) a valid exemption certificate;

(b) an authorisation letter to remain in the Republic contemplated in section 32(2) of the Immigration Act when making an application for any category of the visas, including temporary residence visa."

180. This interim order is necessary to ensure effective relief that will adequately protect the rights of ZEP-holders, their families, and their children.

CONCLUSION

181. For the reasons set out above, the applicant seeks the relief set out in the notice

NICOLE FRITZ

Signed and sworn to on 10th June 2022, Parkview, Johannesburg

Footnotes:

1 World Bank - Zimbabwe Economic Update Overcoming Economic Challenges, Natural Disaster and the Pandemic: Social and Economic Impacts (2021) ("World 'Bank 2021 Report") at page 2. Annexure "FA17.1".

2 IMF Press Statement "IMF Executive Board Concludes 2022 Article IV Consultation with Zimbabwe" (fMF Press Statement), Annexure "FA16". In July 2020 the inflation rate peaked at 837%.

3 Ibid.

4 World Bank 2021 Report, "FA17.1" at page 30.

5 World Bank Zimbabwe Economic Policy Dialogue: Policy Notes for the New Government - 2013 (2014) at page 5, Annexure"FA17.2".

6 World Bank 2021 Report, Annexure "FA17.1" at pages vii and ix.

7 Jonathan Crush and Abel Chikanda 'The Third Wave: Mixed Migration from Zimbabwe to South Africa'

Canadian Journal of African Studies Vol. 49 No 2 at 370, Annexure"FA18".

8 Ibid.

9 In this regard, see Annexure "FA18".

10 Report of The Commission of Inquiry Into the 1st of August 2018 Post-Election Violence at viii.

11 Annexure "FA28".

12 Minister's Answering Affidavit (AA) in African Amity, Caselines p 004-44 para 84.1.

13 Id p 004-46 para 88.2. 14 See Annexure "FA8". 15 Id at para 18.

14 See Annexure "FA8".

15 Id at para 18.

16 AA p 004-44 para 84.1.

17 pp 004-36-7 paras 65.5-6.  

18 7 January 2022 press statement, Annexure"FA28", para 13.

19 White Paper, Annexure "FA6", p 56.

20 Statement para 10.1.

21 Statement para 10.2.

22 Id para 7.

23 White Paper, Annexure "FA6" p 56.

24 Statement para 18.

25 Director-General's Submissions attached as Annexure "FA8" para 4.10.