Applications to waive stringent regulatory requirements
otherwise applicable to general work visa applications skyrocketed, further
deteriorating the processing of applications already affected by the
backlog.
About 176,000 ZEP holders with established lives in South
Africa suddenly found themselves crippled by uncertainty. We estimate that at
the time fewer than 20% of ZEP holders qualified to apply for “mainstream”
visas such as critical skills work visas, spousal-based visas or relative
visas. Many of those applications remain pending with the DHA as part of the
persisting backlog.
This figure does not take into consideration immediate
family members such as dependent foreign spouses and children legally admitted
and residing in South Africa on visitor visas to accompany the ZEP holder, or
on study visas.
In the absence of viable alternatives, all of them would
have had to leave South Africa or choose to become illegal foreigners. The
latter option created a cycle of zero progress in the 15-year containment
process that began with the dedicated amnesty programme (DZP) implemented in
2009.
The DZP programme allowed for Zimbabweans with clean
criminal records and evidence of employment in South Africa, and who were in
possession of fraudulently obtained South African immigration documents, to
forfeit the documents and avoid deportation, while allowing the department to
capture their details towards a reliable census.
As a consequence, the lists of holders of DZP permits,
followed over the years by the Zimbabwe Special Permit and ZEP holders, are up
to date, proving the efficacy of the amnesty programme.
Employers and businesses across South Africa have, since
2021, faced the dilemma of how to deal with the legal limbo of which they were
forced to be an integral part in light of the years invested in growing
valuable resources and trust with their Zimbabwean employees.
The vast majority of ZEP holders have since been stuck in
limbo. One blanket extension after another was administered as a placebo, while
litigation ensued in the South African courts.
The Helen Suzman Foundation’s championing of the rights of
ZEP holders to fair administrative justice led to the Constitutional Court
judgment of 18 June 2024 that dismissed then minister Aaron Motsoaledi’s
application for special leave to appeal.
It upheld the high court finding that the minister’s
decision not to extend the ZEP permits was procedurally unfair and infringed on
the constitutional rights of ZEP holders. The Constitutional Court confirmed
that Motsoaledi had failed to conduct the fair notice and comment process, thus
his decision was uninformed and procedurally irrational.
The court gave holders of expired ZEPs until 29 November
2024 to apply for new one-year exemption permits. The one-year reprieve allows
for due process and consultations to take place.
In the background, all along, fraudsters preyed on the most
vulnerable, taking advantage of the rising uncertainty and desperation and
selling documents to comply with the stringent requirements.
As a consequence, many ZEP holders submitted general work
visas and waiver applications blindly, with very little understanding of the
real prospects of success, while some have succumbed once again to fraud.
General work visa applications require the employer to
apply to the Department of Employment and Labour (DEL) for a certification to
confirm to the DHA directly whether there are suitably qualified South African
candidates for the position, and that the foreign applicant has the necessary
skills and qualifications for the job.
The reality is that since 26 May 2014, with the amended
Immigration Act coming into effect, it has been almost impossible to apply for
and legitimately obtain a general work visa because about 90% of the time the
DEL, which is extremely protective of the South African labour market, refuses
to issue the certification.
This is the forbidding reality that caused our law firm to
cease, as of 2016, to offer professional services in respect of general work
visas unless they were in relation to specific sectors of employment.
Our stance, as an established law firm specialising in
South African immigration, is a revealing indicator of the challenges that have
affected not only ZEP holders, but equally to many foreign employees who fail
to pass muster with the critical skills list, despite having accrued years of
longevity in their roles in South Africa.
For instance, as of the coming into effect of the amended
critical skills list of 2022 and pending the publication and implementation of
the much-anticipated point system provided for in the White Paper on
Citizenship, Immigration and Refugees, many foreign doctors (medical officers)
working in South African public hospitals who do not hold a master’s degree
(equivalent to an NQF level 9) in their field of specialisation have been
unable to renew their work visas.
By signing and publishing Immigration Circular No 7 of 2024
on 6 August 2024, newly appointed Home Affairs Minister Leon Schreiber has
literally nipped the costly three-year debate surrounding ZEP extensions in the
bud, possibly avoiding a full-blown worsening disaster.
The circular supports working ZEP holders to apply to waive
the DEL recommendation and the SA Qualification Authority evaluation
requirements necessary to support general work visa applications, as otherwise
required in terms of sections 18(3)(a) and (b) of the immigration regulations.
This circular opens a legitimate door to a viable process
to apply for waivers and general work visas for those ZEP holders who are
legitimately employed in South Africa and whose employers are willing to
support these applications.
Retention of skills and resources already employed in South
Africa should be treated as a valuable objective as much as the attraction of
additional critical skills from overseas, and should be promoted. For years the
South African economy and employers have battled low employee retention rates,
and at times the “brain drain” phenomenon.
Research has also shown that nearly half of young South
African professionals are unhappy in their jobs and are usually looking to
change jobs within a year. Any HR recruiter can confirm that the most common
thread in the profiles of South African applicants under 30 in the job market
today is “job-hopping” and that CVs rarely demonstrate long-term commitment to
any position.
Considering that retention of skilled and trained
professionals and labour is deemed one of the major reasons for the unsteady
growth of the South African economy, Schreiber’s decision – which will
hopefully not be withdrawn under antagonistic pressures to maintain the
irrational status quo – is extremely welcome and gives some hope to thousands
of families and employers across South Africa.
This same approach should guide the direction of the
department’s decision-making in implementing further much-needed changes.
As the recent past has shown, ministerial exemptions and
immigration directives can be withdrawn with no notice. Therefore, the
reliability of this “safe passage” to mainstream general work visas for ZEP
holders may entirely rely on the longevity of the government of national unity
Cabinet.
Perhaps as never before, the Department of Home Affairs
needs a constant and determined gardener, a supportive environment and a
favourable climate. DM
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