Hope at last for Zimbabweans in South Africa

In November 2021, South Africa's Department of Home Affairs (DHA) abruptly announced that it would not extend the Zimbabwe Exemption Permits (ZEP), leaving hundreds of thousands of Zimbabweans scrambling for alternative visa options under the Immigration Act. The sudden decision triggered a surge in applications for waivers from stringent visa requirements, exacerbating the already existing backlog in processing.

At that time, about 176,000 ZEP holders with established lives in South Africa faced severe uncertainty. It was estimated that fewer than 20% of these individuals met the criteria for mainstream visas, such as critical skills work visas or spousal-based visas. Many of these applications remain stalled due to the persistent backlog. This figure does not account for dependent family members, including spouses and children, who were also impacted and faced the possibility of either leaving South Africa or becoming undocumented.

The situation represented a significant setback in the 15-year containment process that began with the dedicated amnesty programme (DZP) in 2009. This program allowed Zimbabweans with clean criminal records and proof of employment in South Africa to regularize their status and avoid deportation, thereby contributing to an updated and accurate census of permit holders.

Since 2021, employers and businesses across South Africa have struggled with the legal limbo affecting their Zimbabwean employees, who have been caught in a cycle of temporary extensions and litigation. The Helen Suzman Foundation’s advocacy led to a Constitutional Court ruling on June 18, 2024, which found then-Minister Aaron Motsoaledi’s decision not to extend the ZEPs procedurally unfair and unconstitutional. The court ordered that ZEP holders be given until November 29, 2024, to apply for new one-year exemption permits, providing a reprieve for due process and consultation.

Amidst this turmoil, fraudsters exploited the confusion, selling fraudulent documents to desperate ZEP holders. Many applicants submitted their visa applications without fully understanding their prospects, leading some to fall victim to scams.

General work visa applications require employers to obtain a certification from the Department of Employment and Labour (DEL) to prove that no suitable South African candidates are available for the position. However, since the Immigration Act amendments of May 2014, obtaining such certifications has become extremely difficult, with DEL often rejecting applications to protect the local labor market.

This reality prompted our law firm to cease offering general work visa services in 2016, except for specific sectors. The difficulties faced by ZEP holders reflect broader challenges experienced by foreign employees, including skilled workers who struggle to meet the critical skills list requirements despite years of experience.

Recent developments offer some hope. On August 6, 2024, newly appointed Home Affairs Minister Leon Schreiber issued Immigration Circular No. 7 of 2024, which allows ZEP holders to apply for waivers from DEL recommendations and South African Qualification Authority evaluations for general work visas. This circular provides a legitimate pathway for ZEP holders who are gainfully employed and supported by their employers to secure the necessary visas.

The circular addresses the issue of skill retention, which is crucial for the South African economy, given the challenges of employee turnover and the “brain drain.” Research indicates that many young South African professionals are dissatisfied with their jobs and prone to frequent job changes, highlighting the need for effective retention strategies.

Schreiber's decision is a positive step, but its sustainability depends on the stability of the government and continued support for this approach. As the Department of Home Affairs moves forward, it must ensure a supportive environment and consistent policies to address the needs of ZEP holders and other foreign workers.