Employers and employees are concerned by the impending expiration of Zimbabwean Exemption Permits (ZEPs). For some Zimbabweans, this is the only means by which they may legally remain and work in South Africa. On 2 September 2022, the Minister of Home Affairs once again extended the expiry of ZEPs, but not for long. These permits will now terminate on 30 June 2023.
According to the Department of Home Affairs, the primary motivation for terminating ZEPs is that the Department cannot financially sustain their administration. In press statements, the Department has reminded us that the ZEP was always intended to be a temporary measure, having been introduced in 2009 when the Department was unable to cope with a drastic increase in Zimbabwean applicants. The ZEP prevailed until 2021. At this point, the Minister accepted a recommendation that the ZEP be allowed to expire, as per its 2017 extension, on 31 December 2021. The Minister and Cabinet accepted this recommendation, subject to the condition that the validity of current permits be maintained for an additional year to enable foreign nationals to make other arrangements. This set the expiration date as 31 December 2022. This has now been extended by a further 6 months. The Department has made it clear that it intends this to be the final extension.
The ZEP excused Zimbabweans from the ordinary qualifying criteria applicable to the various visas and permits created by the Immigration Act. According to the Department’s statistics, the end of ZEPs is expected to directly affect an estimated 180 000 permit holders. At this stage, it is reported that few have successfully moved from the ZEP to another permit or visa.
Employers cannot turn a blind eye; the Immigration Act demands that employers make a “good faith effort” to ascertain the status of their employees. The Act goes on to prescribe that an employer will be presumed to have known that they were employing illegally when one of their employees is found to be non-compliant with the Act. The consequences for that employer could be a fine or imprisonment. Given these potential consequences, employers must investigate the status of their foreign national employees. Employees should not be left to their own devices, should be instructed to prioritise their alternative applications, and be assisted to progress these wherever possible.
Employers should not underestimate the difficulty of this process. Visas and permits are not readily accessible, for both legal and practical reasons. Employers may need to prove that a South African or permanent resident could not have employed in the same role. The employee may have to demonstrate that they have a critical skills or qualifications. These skills and qualifications are not motivated subjectively; the list is defined by the Immigration Act and was revised and reduced earlier this year. Foreign qualifications may require additional verification, such as the accreditation by SAQA. Once the final application is submitted, one must still contend with a Department infamous for its backlogs and delays. In short; the application process is unlikely to be smooth-sailing and must be started as soon as possible, if it has not already begun.
Where employees do not ensure that they are able to work legally as of 1 July 2023, their employment must be terminated. This dismissal will be for reason of incapacity. Even though an employee’s employment becomes unlawful, they remain entitled to the fair processes applicable to any employee. These processes start now; by allowing employees a fair opportunity to migrate from the ZEP in good time.
Unsurprisingly, this state of affairs has left many questioning whether the Minister properly applied his mind when he decided to terminate the ZEP. The Minister’s decision is currently being challenged by both the Helen Suzman Foundation and Zimbabwean Immigration Federation in the Pretoria High Court. These cases will be heard together in early October 2022. Whether this litigation will resurrect the ZEPs remains to be seen.
Do you employ foreign nationals? Should you have any concerns regarding your employees’ status in terms of the Immigration Act, contact Guy & Associates for assistance.