The employment law team from Cliffe Dekker Hofmeyr has stated that Zimbabwe Exemption Permit (ZEP) holders are legally permitted to work in South Africa until December 31st, 2023, even if their applications for other visas are not successful. Said Taryn York, a member of the team:
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].
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.
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.
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 South African government extended the ZEP, which has allowed tens of thousands of Zimbabweans to live, work, and study in South Africa since 2009, by six months to December due to a wave of visa and waiver applications. As of September 2022, around 178,000 Zimbabweans living in South Africa hold ZEPs, while approximately 700,000 Zimbabweans reside in South Africa. The extension will provide ZEP holders with enough time to appeal the outcome of their visa applications, depending on the reasons for rejection.
ZEP holders can apply for alternative visas, including general work, critical skills, spousal, relative’s, or study visas. However, due to a backlog of almost 63,000 applications, those who have not already applied are unlikely to receive an outcome by December 31st. ZEP holders must have a valid visa to work, but employers can provide information on alternative visas and fair labor practices. Employers must terminate employment fairly with a valid reason.
Earlier this year, the Helen Suzman Foundation, the Consortium for Refugees and Migrants in South Africa, and the Zimbabwe Immigration Federation challenged the department’s decision to terminate the permit, arguing that it violated ZEP holders’ constitutional rights. In addition, GroundUp reported that Zimbabwean Exemption Permit Holders are seeking permanent residency in South Africa. Director of employment law practice and Immigration at Cliffe Dekker Hofmeyr, Gillian Lumb, stated that fair labour practice rules would apply to ZEP holders, and deportation would require a fair reason for termination of employment.