It’s already been extended numerous times. This time, however, the Department of Home Affairs (DHA) is unlikely to grant a further extension of the ZEP, say legal experts who believe employers should help their Zimbabwean workers by educating them on their remaining options, which include applying for alternative work visas that will allow them to continue to reside and work in SA after 31 December 2023.

With its origins in the Dispensation of Zimbabweans Project – or “DZP” (introduced in 2009 when South Africa saw an influx of asylum seekers from the Southern African Development Community) – the ZEP was intended to attend to a growing backlog of visa applications and encourage Zimbabweans who had fraudulent SA documents in their possession. 

Since the ZEP’s introduction in 2017, there have been four extensions. 

Phetheni Nkuna, director at Cliffe Dekker Hofmeyr’s (CDH) employment law practice, told a webinar on Tuesday that the latest extension once again linked to the influx of visa applications, but was unlikely to be repeated. 

“VFS Global, the company that is assisting with the processing of the ZEP visa applications, is receiving in excess of 1,000 to 1,500 applications daily,” she said, adding that Home Affairs has limited resources and funding to deal with the large number of applications, despite deploying more officials from the director-general’s office to assist with the processing.

Due to the volume of applications, it is unlikely to clear the visa backlog by the end of the year.

How will it affect the workplace?

If a Zimbabwean applies for a visa now, they are unlikely to receive the document before the end of the year, warned Taryn York, an associate in CDH’s employment law practice.

Due to the special dispensation, ZEPs can apply from South Africa and not be required to travel outside the country to do so.

If the visa is denied, they can lodge an appeal (depending on the reasons it was declined), but after 31 December 2023, they cannot continue working for their employer without a valid visa.

“Effectively, any holder of the ZEP can work legally in South Africa. Unlike some of the other visas, ZEPs are not limited to the employer and what position they can work in. Until 31 December 2023, they can continue working,” York said.

After that date, ZEP holders would have to find an alternative mainstream visa, which includes a work visa (which could be valid for up to nine years); a critical skills visa (valid for five years); spousal/relatives visa, or a study visa (which allows them to work for up to 20 hours a week).

“A lot of the ZEP holders don’t know what alternative visas they can apply for in South Africa and what they qualify for. It would be useful for employers to get a specialist in obtaining these services, provide the ZEP holders with information and help them with supporting documents that they need for their applications, including contracts, reference letters etc.”

Employers could also consider providing staff with financial assistance for them to submit the applications.

Repercussions

ZEPs can apply for the visa while they are still in SA due to the special dispensation and lodge an appeal. If a decision has not been made by the end of the year, they cannot continue working legally in SA without a visa and in terms of the Immigration Act, an employer cannot legally employ someone without a valid work visa.

“What we have seen is that the DHA director-general has issued various directives allowing foreign nationals with pending visa and waiver applications to continue working due to the backlog. Whether a similar directive will be issued in December just before that deadline, is uncertain,” York said.

In terms of the Labour Relations Act, employers are not allowed to employ foreigners without valid work visas, but workers still have rights under the Basic Conditions of Employment Act, which includes fair labour practices. Employers still need to follow a fair process to address their continued employment or to terminate employment at that stage. 

Employers need to ensure that all foreign nationals they employ have a valid work visa. When an employer employs someone in contravention of the Immigration Act – or someone with access to information about such employment – they can be arrested and be held liable for a fine or prison upon conviction. 

Challenges to the scrapping of the ZEP

The announcement by Cabinet not to extend the ZEPs after 31 December 2021 gave rise to numerous applications being instituted against the Minister of Home Affairs and others by various interested parties and NGOs, which were argued before the Pretoria High Court at the beginning of April 2023.

The judgment in this litigation is expected to be handed down by the end of this month. If the minister’s decision is upheld, ZEP holders who have not obtained alternative visas – as well as their families – will have to leave SA.

Nicole Fritz, executive director of the Helen Suzman Foundation, was one of several parties that sought to challenge the ZEP because the decision had been made without consultation.

“Persons holding ZEPs are entitled to be consulted and that flows directly from section 33 of our Constitution. That provision enshrines a right to fair government decision-making, and it is not reserved only for citizens,” she explained.

“The second argument is that given the destructive effect of the ZEP’s abrupt termination on the lives of the holders and the children in particular, the minister’s decision unlawfully and unjustifiably limits their constitutional rights, not just procedural rights, and particularly argue that there are rights to dignity enshrined in Section 9 of the Constitution.

“The requirement… that a child’s best interests are of paramount importance is abrogated.”

Part of the hardship of this decision to scrap the ZEP is the abruptness with which it was made, giving people little time to plan their lives and essentially placing them in an impossible position: Either to remain in SA, but as an undocumented migrant with all the vulnerability attached to that status, or to return to a country that they left more than a decade ago.

Judgment in this matter has not yet been issued, Fritz said.

“Obviously, this most recent extension to some extent alleviates the urgency, but only slightly. Huge numbers of ZEP holders and those who are impacted by this decision need certainty and time in order to plan for the repercussions of this.”

She said they didn’t believe they would be able to stall the ZEP indefinitely, adding that political decision-makers, provided that the circumstances were right, were empowered to bring the special exemption regimes of this type to an end. 

“But they must be done in a lawful fashion, following fair process as a bare minimum.” DM