Nomazotsho Memani
It is imperative that South Africa revokes all (Special Dispensation) Exemption Permits, as they violate both the Constitution and the SA Immigration Act 13/2002 as amended.
The Special Dispensation for Lesotho and Zimbabwe Exemption Permits (ZEP) are exploitative in nature and provide no benefits to their holders.
In fact, holders of these permits are often subjected to cheap and unfair treatment by employers who do not follow the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA).
The permit holders are in a vulnerable position, as they are often not protected by SA laws and are unable to freely join trade unions, worker’s forums and further making it difficult to hold their employers accountable through the SA system.
In the poorer communities where the permit holders live, they are regarded as illegal foreigners since the document is not in line with the prescripts of the law.
Also, the Special Dispensation Permits are temporal in nature and are supposed to prescribe. Hence revoking these permits is necessary to ensure fair treatment and the protection of the holders residing in South Africa.
According to the SA Immigration Act 13/2002 as amended, exemption permits are not granted without meeting the specific criteria outlined in sections 10 to 24. The Act does not provide for country dispensation and economic migrants permits.
As stipulated, in sections 10 to 24 of the Act, exemption permits must meet specific criteria before being granted. It must be recognised that particular permits, which the Act does not cover may be issued on the basis of specific authorisations which must have a timeframe.
The truth is that the rate of illegal migration is significantly higher than that of legal migration into South Africa. So, Illegal foreigners in South Africa have resorted to desperate measures to cope with poverty and unemployment rather than going back to their countries.
The influx of poorer migrants into equally poorer communities is causing tensions between them and the South African communities who have to share scarce resources and amenities such as public schools and health services.
These tensions have caused breakouts in violence labeled xenophobic by news commentators in the mainstream media since 2008.
The tension between citizens and illegal immigrants remains toxic and remains unresolved.
The South African government has tried to address the issue of illegal migration and the special permits granted to Zimbabweans by declaring that it will no longer renew the permits once they expire. But the Home Affairs Minister Dr Aaron Motsoaledi hit a brick wall when NGOs went to court and challenged the decision.
The permit holders, together with all other illegal immigrants, also have a challenge of accommodation in South Africa and they end up staying in horrendous and overcrowded places that are not designed for accommodation.
There are many court cases where landlords try to evict illegal occupants who are illegal foreigners in South Africa and they get blocked by NGOs such as the Helen Suzman Foundation.
The courts often find it difficult to balance or give guidance regarding the relationship between the Prevention of Illegal Eviction Act and the Immigration Act. The courts had to pronounce on the duty of the City of Joburg to provide temporary emergency accommodation to illegal immigrants upon their eviction from privately owned land as it is the court’s duty to interpret the law, the court said.
South Africa is over-legislating and, therefore, it is failing to balance and give guidance regarding relationships of the legislation. The recent fire that occurred in Johannesburg CBD is a typical case of illegal occupation of the property which resulted in 74 people dying when a hijacked building they were occupying caught fire.
South Africa is also grappling with an illegal mining crisis caused by the Zama Zamas who mostly come from rural areas of Lesotho because of poverty to seek employment in Gauteng.
Most of these illegal miners are under the impression that what they do is legal in South Africa. This has created tension between these two countries.
The South African government is also failing to deal with the underlying problem i.e. agents and labour brokers and to trace and/or identify the customers of these individuals because that is where the crux of the matter is.
Furthermore, Zimbabweans mostly and other nationals come to South Africa looking for any type of job that will make them survive. They also found creative means of survival, thus some ended up having been linked to numerous criminal activities such as cash-in-transit, ATM bombing, car hijacking, housebreaking, and other violent crimes of gangsters in the country.
These crimes occur daily mostly in urban areas. Most of these acts of criminality are done by undocumented foreign individuals after receiving training for these various crimes. White-collar crime has a history in this country, these crimes are a joinder to it.
Also, remuneration of the security cluster is a priority in other countries as it prevents corruption. In SA the security cluster is highly unionised as members mostly engage in wage-related strikes rather than prioritising their work due to underpayment.
There is a crisis in informal businesses across the country, where some exemption permit holders are being asked to surrender their stalls and businesses by South Africans. However, some South Africans are renting out their structures to foreign nationals to operate and pay them.
Some foreign “spaza owners” even bribe officials to obtain fraudulent SA IDs. This information is part of a government discussion paper on illegal immigration.
Despite meetings at various levels of government, the issue of overpopulation caused by undocumented immigrants persists. In 2019, City of Joburg reported that illegal immigration poses serious challenges to providing basic services and temporary emergency accommodation to residents.
This shows that this legal loophole, in the form of illegal permits, has created a crisis in South Africa where service delivery is affected by overpopulation.
It is imperative therefore, that exemption permits must be designed to allow illegal immigrants whose papers have expired to leave the country legally.
There are no penalties for illegal immigrants in South Africa because the system is deliberately sabotaged to allow undocumented foreigners to stay free in SA.
It is a matter of concern that SADC countries have not addressed the issue of exemption permits issued by South Africa to their citizens. Now some of these holders are fighting in court in order to be given recognition and citizenship.
This matter is beyond SA courts, and SADC needs to carry it so there should be a bilateral/ concrete agreement. That will also help track the movements of permit holders for the security of the region.
It is worrying that politicians in these countries are aware of the criminal impacts of such movements but remain silent. South Africa is a syndicate for commercial crime, as criminals flock here to carry out their agendas. This is a serious issue that demands immediate action.
In South Africa people are killing each other through “xenophobic attacks”, “Undocumented foreigners” are used as soldiers of crime in South Africa however we haven’t received any proposal to resolve this crisis from AU meetings.
Here we are referring to the citizens of their respective countries and it seems politicians care less about the loss of lives, perpetual crimes, and the health and safety of their citizens.
Nomazotsho Memani is an International Corporate Lawyer in Immigration Law and Business Rescue.
