Zimbabwe permit holders can work until 31 December even if permit application unsuccessful

Nowhere to go: Zimbabwean special permit holders outside Home Affairs. (Madelene Cronjé)

Zimbabwe Exemption Permit (ZEP) holders can legally work in South Africa until 31 December even if they are not successful in their applications for other visas, said the employment law team from Cliffe Dekker Hofmeyr. 

Earlier this month, South Africa’s government extended the ZEP, due to expire at the end of June, by another six months to December, citing a wave of visa and waiver applications.

“You are still legally allowed to work and live in South Africa even if your application is unsuccessful, you can still work until that time [31 December],” said Taryn York, a member of the team.

“That will also give you enough time to apply for an appeal against the outcome of your visa depending on the reasons it was rejected. So, they [ZEP holders] would not need to leave immediately.”

The firm’s team on Tuesday held a discussion on the ZEP and the workplace factors that may affect holders and their employers. 

In announcing the extension to December, the department of home affairs said there had been “significant developments” since the permit — which has allowed tens of thousands of Zimbabweans to live, work and study in South Africa since 2009 — was first extended to 30 June 2023.

“One of the benefits of this extension is for ZEP holders to try to obtain an alternative mainstream visa in terms of the Immigration Act. Alternative visas include your general work visa which could be granted for a period of up to five years, the critical skills visa, also granted for a period up to five years,” York said.

“ZEP holders can also consider applying for a spousal visa or a relative’s visa. They can also consider applying for a study visa, which would still allow them to work in South Africa but there would be a limitation on the number of hours they would be allowed to work a week, which is currently capped at 20 hours a week.”

The reprieve for Zimbabweans working in South Africa, having fled the economic and political turmoil in their country, was first introduced in 2009, as part of the Dispensation of Zimbabweans Project (DZP).

In January 2022, Motsoaledi approved a recommendation not to extend the exemptions, saying the permit was always “a temporary measure, pending improvement of the political and economic situation in Zimbabwe”.

The Mail & Guardian previously reported that earlier this year the Helen Suzman Foundation challenged the department’s decision to terminate the permit in the Pretoria high court, contending that it infringed on the constitutional rights of ZEP-holders. 

Two other civil society groups, the Consortium for Refugees and Migrants in South Africa and the Zimbabwe Immigration Federation also challenged the home affairs department’s decision. Judgment was reserved. 

In addition, the Zimbabwean Exemption Permit Holders, GroundUp reported that the latter is seeking permanent residence in South Africa for ZEP holders.  

According to statistics released by the Zimbabwe National Statistics Agency in September 2022, South Africa is home to 700 000 Zimbabweans. There are about 178 000 ZEP holders in the country, the home affairs department says. 

York said it was unlikely that any Zimbabwean who had not already applied for a visa would receive an outcome by 31 December because of the backlog of nearly 63 000 applications that the home affairs department is grappling with.

She explained that if a person applied timeously but had not received an outcome on their application by the expiration date of the extension, they would not be allowed to continue working for their employer without a valid visa “unless the director general of the department of home affairs issues a directive allowing them to do so”.

“What we’ve seen in the last few years because of the backlog at home affairs is that the director general has issued various directives allowing foreign nationals with pending visas to continue working on their current status due to the backlog,” she added. “Whether a similar directive will be issued before the 31 December deadline, we’ll have to wait and see.”

York said employers could assist their affected workers by providing them with information, adding: “It would be useful to get a specialist who can provide ZEP holders with information because a lot of them don’t know what alternative visas they can apply for or what they qualify for.”

In terms of the country’s immigration laws, employers are not allowed to employ foreigners without a valid work visa and can be arrested, fined or imprisoned upon conviction.

But “just because a ZEP holder no longer has a permit or an alternative visa they are still defined as an employee in terms of the Labour Relations Act as well as the basic conditions of employment act, and they still have a right to fair labour practices,” York said.

“Employers still need to follow a fair process in order to address the continuation of employment and also have a fair reason to terminate employment.”

Gillian Lumb, director of employment law practice and head of immigration at Cliffe Dekker Hofmeyr, added: “In this case the Immigration Act is effectively trumped to some extent by the Labour Relations Act. So, the employee would not be automatically deported; there would first need to be a fair reason for termination of employment.”