ZEP holders: Renewed hope for permanent residency

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JEREMY MAGGS: The Pretoria High Court has ruled the Department of Home Affairs’ decision to summarily withdraw the Zimbabwean Exemption Permit (ZEP) is unlawful, unconstitutional, and invalid. So what does this mean? Well, effectively, permit holders will now have another 12 months to remain in South Africa without fear of reprisal or arrest.

Muchengeti Hwacha is the executive director of the Asylum Seeker Refugee and Migrant Coalition. He’s with us now at the top of the programme. So no doubt you’ll welcome this decision, but I am also assuming that your fight is not quite over.

MUCHENGETI HWACHA: Indeed, we welcome the decision and very correct, the fight is not over. There have been indications that the minister (Aaron Motsoaledi) may appeal, so we may move on to a different forum. Even if he doesn’t appeal, there’s still a consultation process that has to be done before a final determination can be made on whether the permits are going to be cancelled or we’re going to continue with them or some other permit regime.

JEREMY MAGGS: My understanding of this decision is the court has ordered the department now to conduct a proper public participation process as required by law. One’s got to ask why this wasn’t done in the first place and now that this has been ordered, how you think this is going to play out and logistically how difficult is that going to be?

MUCHENGETI HWACHA: So why it wasn’t done in the first place is anybody’s guess, Jeremy. It’s very disappointing for the government to have acted in this manner. The minister ought to have known the procedures in order to take a decision such as this and consulted with the public, consulted with society and, of course, the affected individuals.

The manner in which we hope that it plays out, is that we are able to make representations to the minister and motivate why we think that these individuals should be given a pathway towards permanent residence.

JEREMY MAGGS: So remind me again of what that argument entails.

MUCHENGETI HWACHA: So essentially, this is not the first time that we’ve dissolved a special permit regime, Jeremy. We have previously done so for the Angolans when we put them on special exemption permits. In that case, there was broad consultation with the various governments involved [and] the United Nations Refugee Agency.

It was eventually decided that these individuals, because of how long they’ve been here, the fact that they’ve put down roots, raised families, built careers, should be given a pathway towards permanent residence. So the Zimbabwean case is strikingly similar and so our argument to the minister will be exactly that, that please follow the route that you did, or the ministry did, previously with the Angolan Exemption Permit.

JEREMY MAGGS: After this decision by the Pretoria High Court, is it too early to gauge what the community response is? Have you been talking to people who would be impacted by this?

MUCHENGETI HWACHA: I’ve been engaging with them since the judgment came out. They’re quite elated that their rights to administrative justice have been affirmed. Obviously, it’s only a temporary reprieve for 12 months, and so there’s still a little bit of anxiety of what happens next. But the judgment has been widely welcomed.

JEREMY MAGGS: But there is still difficulty as far as this community is concerned with access to certain services, isn’t there?

MUCHENGETI HWACHA: Yes, there is, and it’ll always be that way, unfortunately. There’s always some sort of disconnect between … the letter of the law and the actual lived experiences of migrants at various points where they receive services. So it’s just about continuing education, educating officials, public officials, police and so on, as to the rights of migrants and the manner in which they should be treated under our Constitution.

JEREMY MAGGS: Maybe this is a good opportunity for you to give us a sense of that lived reality of the people who are affected by this.

MUCHENGETI HWACHA: Migrants in general, and ZEP holders specifically, are often subject to discriminatory behaviour by public officials. From applying for a licence, receiving services at hospitals, almost every sector in which they’re forced to engage with a public official, we’ve had incidents of people finding difficulty accessing services because of their nationality or immigration status.

So it’s an unfortunate situation and there is a sentiment within the country that is anti-migrant.

But we are hoping to continue to educate society that we are essentially one, we are part of your community, and you are a part of our community. The idea is to live in harmony and push the country forward to a better place.

JEREMY MAGGS: That’s very noble and idealistic. But they’re also very entrenched positions in this country, are they not?

MUCHENGETI HWACHA: Definitely and very much influenced by our political leaders and other leaders. I think if they take charge in putting out the correct rhetoric that migrants, according to economic studies, are actually an [aid] to the South African economy, migrants build businesses, create jobs, and I think that is the correct message to be pushed forward. If we continue to advocate in this manner the society, I think, will come to…

JEREMY MAGGS: How do you get government and other stakeholders to do that when the common perception is that foreign nationals take jobs away from South Africans?

MUCHENGETI HWACHA: It’s an uphill task, Jeremy, unfortunately. We are doing a number of advocacy initiatives to try and engage with the various stakeholders and to look at the literature. We don’t have to go far into the subject, we just have to look at what economists say is the impact or the net result of migrants’ presence in South Africa. Then, of course, we need a culture shift in the country to embrace, especially our brothers and sisters from the African continent to realise that initiatives such as the African Continental Free Trade Area (AfCFTA) agreement are only going to integrate us further, and such integration is a benefit for all.

JEREMY MAGGS: Is change needed to the Promotion of Administrative Justice Act itself?

MUCHENGETI HWACHA: Not at all, Jeremy. I think that this court ruling affirms that our law is correct on the position of administrative justice. It is the minister who’s failing to adhere to the letter of the law.

If you read one of the judgments, the court almost expresses surprise that this is such an ordinary thing that public officials should know that before taking such drastic administrative action, it is important to consult widely with all the stakeholders, including the broader South African public.

JEREMY MAGGS: Just a final question. It was interesting to read in that judgment that the court questioned the assertion made by South Africa, that conditions in Zimbabwe had improved. That’s an odd statement to make.

MUCHENGETI HWACHA: Indeed. The reality is that the material conditions that brought ZEP holders to South Africa in the first place remain unchanged in Zimbabwe. The economic situation, the political situation is still dire. Therefore, it’s curious for the minister to make assertions that Zimbabwe is in a better place or is in a position to accommodate the people who had left in the first place. We think a better engagement with that subject is needed by the minister.

JEREMY MAGGS: And that’s where I am going to leave it. Responding to the Pretoria High Court judgment, Muchengeti Hwacha, executive director of the Asylum Seeker Refugee and Migrant Coalition.