The Termination of the Zimbabwean Exemption Permit: A Direct Violation of the Principle of Non-refoulment?

"Zimbabwean demonstration in South Africa" by Sokwanele - Zimbabwe is licensed under CC BY-NC-SA 2.0.

On 19 November 2021, the Minister of Home Affairs, Dr. Aaron Motswaledi announced the termination of the Zimbabwean Special Permits (ZEPs) set to expire at the end of 2021.

ZEP holders were given a twelve-month period to regularise their stay in terms of the Immigration Act 180 of 2002 (Immigration Act),  a recommendation that is simply not workable given the barriers to the immigration system as a result of financial and qualification requirements.

The Minister and his department are clearly aware of these barriers as the period to regularise residence in South Africa (SA) was recently extended by a six-month period ending in June 2023.

In 2005, Zimbabwe launched a violent eviction initiative known as Operation Murambatsvina, which translates to “operation clear the filth”. During this campaign, the Zimbabwean government destroyed the homes and livelihoods of approximately six percent of the country’s population in high-density suburbs.

The crisis reached its peak in 2008 when thousands of activists and supporters of Zimbabwe’s largest opposition party at the time, the Movement for Democratic Change (MDC) fled rural areas, some crossing the border into South Africa, to escape the violence that followed the presidential election re-run.

The Southern African Democratic Community mandated South Africa (SA) to mediate however, SA failed to denounce the violence metered out predominantly against MDC supporters. As a result, Zimbabwean nationals arrived in South Africa as asylum seekers fleeing persecution which took place in the form of torture, violence, arbitrary arrests, and detention.

During this time, Zimbabwe was reported to have one of the world’s fastest-shrinking economies and the highest rates of inflation. The real GDP had declined significantly for nine years in a row, and agriculture, which is Zimbabwe's economic engine, shrunk dramatically resulting in a severe food shortage that affected more than one-third of the population. The health sector also had difficulties providing basic services.

In deciding the best course of action for dealing with the presence of Zimbabwean asylum-seekers in South Africa, the South African government and other international actors had to acknowledge that Zimbabweans were being forcibly displaced. However, some circumstances leading to the evacuation of Zimbabweans did not fall neatly within the ambit of section 3(a) or 3(b) of the Refugees Act 130 of 1998 (Refugees Act).

These provisions set out the protection of persons compelled to flee their place of habitual residence based on a well-founded fear of persecution on the basis of several prescribed grounds as well as those fleeing external aggression, occupation, foreign domination and/or events seriously disturbing public order.

To accommodate persons who did not fall into the category of ‘refugees’ despite requiring urgent assistance, the Minister of Home Affairs relied on his discretionary powers under section 31(2)(b) of the Immigration Act which gives him the power to exempt certain people from standard immigration procedures. The provision states that the Minister “may under terms and conditions determined by him or her… grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which justify such a decision.” Accordingly, the Minister relied on this provision to issue the ZEPs in acknowledgment of the socio-economic crisis in Zimbabwe.

The Principle of Non-refoulment

The Minister’s decision to now return ZEP holders back to Zimbabwe brings forth a number of human rights issues. For instance, section 2 of the Refugees Act mirrors the principle of non-refoulment which is enshrined in a number of international instruments relating to refugees, both at the universal and regional levels, including article 33(1) of the 1951 United Nations Convention relating to the Status of refugees.

This principle prevents state parties from expelling or returning refugees in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened or they are likely to suffer persecution on account of their race, religion, nationality, membership of a particular social group or political opinion.

Country of Origin Information on Zimbabwe as per reputable international organisations indicates that Zimbabwe is not safe to return to as the political system remains of a nature that persecutes people and the government does not uphold the rule of law. Therefore, returning some ZEP holders to Zimbabwe would amount to a direct violation of the principle of non-refoulment.

The United Nations High Commissioner for Refugees (UNHCR) has over the past decade reported on the ongoing political persecution in the form of torture, violence, abductions, and arbitrary arrests in Zimbabwe.

A recently published report produced by the Asylum Research Centre and commissioned by the UNHCR entitled: “Zimbabwe: Country Report October 2022” maps out the political and economic crisis in Zimbabwe over the last decade and reflects the current reality of the experiences of people living in Zimbabwe.

Most importantly, this report verifies that there are ongoing acts of violence and torture by state forces against activists. Furthermore, it provides well-referenced information confirming that Zimbabwe remains a country in turmoil with serious economic and political challenges, including violence post the 2008 period and well into 2021. It is this information that the Minister must pay heed to when considering withdrawing the ZEPs.

“Left unchecked, the Minister’s decision does not bode well for our constitutional democracy and ultimately, for all who live in South Africa...”

The Constitutionality of the Minister’s Decision

The Minister’s decision to terminate the ZEPs is respectfully, both procedurally and substantially fatally flawed as it lacks consideration of section 33 of the Constitution of the Republic of South Africa which provides that “everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.”

In addition, section 3(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), provides that, “in order to ensure procedural fairness, all persons whose rights are materially and adversely affected by administrative action are entitled to adequate notice of the nature and purpose of the proposed administrative action, a reasonable opportunity to make representations (the audi alteram partem principle), a clear statement of the administrative action, adequate notice of any right of review or internal appeal, where applicable”.

Whilst the ZEPs were enacted through Section 31(2)(b) of the Immigration Act, also referred to as the “ministerial discretion”, this discretion is not absolute. The Minister is still accountable under both the Constitution and PAJA.

The decision to terminate the ZEP and the reckless arbitrary manner in which it was announced has resulted in unimaginable suffering as thousands of people from Zimbabwe face uncertainty over their lives and future.

When reflecting on the Minister’s decision, it is important to ask questions about the lived realities of people residing in Zimbabwe and to consider the circumstances that force them to leave their homes and families to enter a hostile country where they are exposed to xenophobia. This is also a reminder of the harrowing and painful death of Elvis Nyathi, a Zimbabwean national who was brutally murdered last year in a xenophobic attack.

Given that this special dispensation covers a time span of over a decade, many ZEP holders have built their families, lives, and homes in South Africa. Estimates indicate that up to half a million children will be affected by this decision, which will undermine the best interests of the child principle enshrined in South Africa’s Constitution due to the severe psychological trauma that comes with uprooting their lives in South Africa and exposing them to further trauma and suffering in Zimbabwe.

Furthermore, some ZEPs holders were previously asylum seekers who opted into the immigration system by accepting the ZEP scheme.

Left unchecked, the Minister’s decision does not bode well for our constitutional democracy and ultimately, for all who live in South Africa, if state officials are not held accountable. Failing to ensure administrative justice is an infringement that must be challenged, as such many civil society organisations have brought different challenges to this decision in court.