‘The organisation is of the view that the extension of the Zimbabwean Exemption Permit (ZEP), together with a high number of illegal immigrants in the country, is compounding the already dire situation of criminality,” Zandile Dubula, executive director of Operation Dudula, said in a short affidavit before the Gauteng High Court.

She was arguing for her organisation to be allowed to join a case asking the Gauteng High Court to set aside the current decision to terminate the ZEP and order Home Affairs Minister Aaron Motsoaledi to take a new decision in line with the Promotion of Administrative Justice Act of 2000.

The Helen Suzman Foundation (HSF) last year took legal action challenging Motsoaledi’s decision to terminate the ZEP. This case has been scheduled for April.

The ZEP special dispensation offered legal protection to about 178,000 Zimbabwean nationals, allowing them to live, work and study in South Africa.

In one form or another, permits for Zimbabweans choosing to live in South Africa have been in place since 2009. In their court papers, the HSF objects to the lack of notification and public consultation before Motsoaledi announced in November 2021 that the ZEP would be terminated. 

“They (holders of ZEPs) 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,” reads a statement issued by the HSF when the legal review was launched.

“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.”

In September 2022, Motsoaledi published a notice stating that a “grace period” would be introduced and remain in effect until 30 June 2023. 

Motsoaledi opposes the HSF’s application. The Consortium for Refugees and Migrants in South Africa has joined the HSF as a second applicant.

Operation Dudula and the All Truck Drivers Forum and Allied South Africa then asked to be allowed to intervene in the application. The Truck Drivers Forum was successful, but Operation Dudula was not. The forum asked to be allowed to join the court case, arguing that the extension of the ZEP “… contributed to the proliferation of illegal, undocumented drivers in the trucking industry in the Republic”.

Operation Dudula claimed it was concerned about and opposed to criminality in general, and in particular “when perpetrated by illegal foreigners who have entered the country”.

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The organisation stated in papers it is of the view that the ZEP “exacerbates this situation”.

Nicole Fritz, executive director of the Helen Suzman Foundation, argued in her affidavit that the statements made by Operation Dududla were an “unsubstantiated xenophobic slur against ZEP holders which must be rejected in the strongest terms… 

“There is not a shred of evidence from [Operation Dudula’s] founding papers to suggest that ZEP holders contribute to crime in South Africa.” 

She added that holders of ZEPs are considered legal and documented.

“The sole claim to a right to intervene contained in Operation Dudula’s 19-paragraph founding affidavit is the following: ‘The applicant is a civil rights movement whose main objective is to fight crime and criminality using legal protests and court applications’,” Judge Norman Davis said in his ruling.

“‘The organisation [believes] that the extension of the Zimbabwean Exemption Permits, together with a high number of illegal immigrants in the country, is compounding the already dire situation of criminality.  Accordingly, the applicant submits that it has a direct and substantial interest in the main application’.

“Not only are these statements devoid of particularity or underlying evidence, but they also lack cohesion and substance,” Davis said. 

“Is it alleged that all ZEP holders are criminals? That is an untenable proposition and cannot be accepted as evidence. It can also not be accepted as a general statement applicable to either the present validity period of the ZEP regime or any extension thereof.  

“The affidavit seems to suggest that ZEP holders are illegal immigrants, while the opposite is the position during the period of validity of their permits, ZEP holders are both documented and lawful foreigners.

“Dudula’s premise upon which it claims a right to intervene is therefore without foundation.”

Judge Davis said the Truck Drivers Forum also could not indicate how many ZEP holders operate in the truck driving industry, and while he made no judgment on their claims before the court, he did allow them to join the main application.

“I need to stress that no finding is being made in allowing the intervention as to any of the aspects contained in the Truck Drivers Forum’s arguments.  That will be for the court hearing the main argument to determine,” Davis added. DM/MC