ActionSA slams ZEP extension as Schreiber defends legal process

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JEREMY MAGGS: The political party ActionSA has come out strongly against government’s decision to extend the Zimbabwean Exemption Permits (ZEP) until 2027. The party says the move reflects political indecision, weak governance, and a failure to implement a clear immigration plan.

It goes on to argue that repeated extensions undermine the rule of law and create uncertainty for both citizens and permit holders.

So let’s talk a little further about this. I’m in conversation with ActionSA’s parliamentary chief whip, Lerato Ngobeni. A very warm welcome to you. It’s very easy to criticise, of course. What would you actually do differently tomorrow morning?

LERATO NGOBENI: Your intro is very apt in terms of our stance in this regard. You asked me what we would do. In the statement that we released, we spoke about doing a couple of things, and I’m going to mention only three.

We are saying firstly that there must be regularisation for those who meet the visa criteria. These include people who have critical skills in scarce professions, legitimate employment and family ties. We want this to be fast-tracked. The adjudication process must be fast-tracked and proper visas must be issued.

Read: Zimbabwe and Lesotho permit holders get a reprieve until May 2027

The second one is that we need those who do not qualify, we speak about humanity in this regard, the issue of ubuntu, the issue of human rights, we need a graceful exit for them with assisted voluntary return for those who do not qualify. We want this to be time-bound and coordinated with the Zimbabwean government. It’s very strange as to what is happening between our government and the Zimbabwean government. It’s very unclear and we need clarity and certainty in this regard.

Thirdly, we believe that there should be special humanitarian cases for people like learners, children who are in long-term schooling in our country, and those with chronic medical needs, for targeted waivers. These must be on a case-by-case basis, not these blanket extensions that we have seen the ministry resort to time and time again.

Read:
Home Affairs in the dock over termination of ZEP system [Apr 2023]
Court grants ZEP holders another 12 months [Jun 2023]
ZEP and Lesotho permit holders can stay two more years, but … [Dec 2023]

JEREMY MAGGS: But you will concede that it’s difficult to balance enforcement with basic human rights, as you’ve suggested.

LERATO NGOBENI: It is very difficult. However, when you are in government, you are governing for your citizens, and indecision and lack of clarity creates the kinds of tensions that we have seen in this country.

It absolutely cannot be correct that it can be left to the Human Rights Commission to go and fight with groups like Operation Dudula and so on. What the people of South Africa need is a government that demonstrates that, firstly, it puts them first. Secondly, that they are attending to the issues that are creating the tensions that we are seeing in our country.

Read: The resonance of Operation Dudula

This has been a long time coming. We have seen xenophobic attacks happening, the earliest I can remember being in 2008. It cannot be allowed.

This ZEP programme, Jeremy, was never meant to be a permanent solution to the Zimbabwean crisis.

It was meant to be a temporary relief for those who were economic migrants into our country. What we need is a time-bound framework with milestones as to what it is that we are going to do as South Africa on behalf of the Zimbabwean people. Now, the number that is being cited here of almost 180 000 holders of this permit, the government right now, as we speak, does not know how many illegal migrants are in this country, and people are abusing the system.

People are abusing the courtesy of the ZEP, and South Africa is not being taken seriously, and South Africans don’t feel that they are being taken seriously. This is why we are against this extension, because it has happened time and time again.

I think the first time was about a year ago, in December, there was another extension. We cannot be having these perpetual extensions.

We need proper visas for the people who need them and for those who should rightfully and legally be in South Africa.

JEREMY MAGGS: But you’ll concede that it is a very complicated and complex issue. The minister [Leon Schreiber] says the extension is pending consultation and also policy review. Surely time needs to be given in order to reach an equitable solution on this particular issue.

LERATO NGOBENI: This comes as a result of the court’s ruling that there should be a process that regularises, that there should be a process of consultation. That is correct. But being lawful should not also be misguided. While you cite the fact that it is complicated – well, life is complicated. But we must uncomplicate it; we must simplify what needs to happen.

Extending the process or extending the permits does not uncomplicate the issue. Actually, it compounds the problems that we are facing.

What we are asking is that there must be a time-limited process that is clearly articulated and communicated to the people of South Africa, so that the South African people do not see it as a perpetual extension that does not take into account all of the contemporary realities that we are facing, that cannot be ignored, Jeremy.

We are wanting to say this in the strictest, humane terms possible. This is not about flaring up and people using complicated words that just create confusion in our country, such as xenophobia. This is not that. The law is asking, and the courts are asking, that there must be proper consultation. There must be regularisation, and not just perpetual extensions.

This is what we are asking the ministry to do. Yes, it’s complicated. Governing is complicated. If it wasn’t complicated, everything would be smooth in our country. However, we do have laws, and those laws must be implemented, and the regulations must go with the laws so that we can implement what South Africans want to see.

This is why we’re putting pressure on the department to come out with a clear plan, and not just to say that we are going to extend until 2027. That is really what we are asking and the complications are appreciated, Jeremy, notwithstanding.

JEREMY MAGGS: If that clear plan is not forthcoming, what then?

LERATO NGOBENI: Well, our job is to hold the department to account, and this is why you and I are having this conversation. We will continue to apply pressure, but the department and the government of our time now must be prepared to take responsibility for what is happening.

There have been threats now, I’m not sure if you’re aware, of the barring of children of undocumented migrants, or undocumented children, from entering school. What is going to happen in our country? We don’t want this kind of chaos. What we want is a little bit of certainty, and that is what we are asking from the department.

Read: What migration is really doing to politics and economies worldwide [Apr 2024]

If the department is not forthcoming, we will continue to apply pressure. We will continue to communicate on behalf of the South African people. We will continue to write to the minister. We will continue to speak with yourself, and hopefully the ministry will also respond. But that is our job.

More than that, I can’t take the minister by the hand and make him write, but we will continue to apply the necessary pressure for that time-bound process, the timelines, the regularisation, and the certainty on behalf of the South African people. We will continue to do that.

JEREMY MAGGS: Lerato Ngobeni, thank you very much indeed. The parliamentary chief whip for ActionSA.

Now, the Home Affairs Minister, Leon Schreiber, has again extended Zimbabwean and Lesotho exemption permits by 18 months, now valid until 28 May 2027, if I’ve read this correctly. Claiming, in his words, that it’s a holding pattern while consultations and policy review continue. Critics, though, are saying it’s another dodge that delays decisive action and undermines the rule of law, as well as perpetuating uncertainty.

Let’s get the view from the Home Affairs Department. Minister Schreiber, a very warm welcome. You say the extension is pending consultation via the Immigration Advisory Board. Why hasn’t that board already completed its work, given the urgency and the years of delay?

LEON SCHREIBER: Good to be with you again, Jeremy. I think it’s important, when considering some of these unfounded allegations, to just give the full picture of where this comes from. Some of these permits date back 10–15 years. The ZEP, for example, comes from 2009 originally.

Structures like the Immigration Advisory Board were effectively abolished, they were never put in place for essentially the past decade. Then you’ll recall, I think in 2023, there was a decision by the then Minister of Home Affairs to summarily terminate the Zimbabwe Exemption Permit. That process went to court, and the Constitutional Court overturned that decision, saying that there needs to be thoroughgoing consultation with affected persons before any kind of long-term decision can be made on the future of the permit. In the interim, it needs to be extended. You can’t just take away those rights from people who clearly do have them.

What I found when I came into office, firstly, is that the Immigration Advisory Board did not exist and had not existed for a decade. So we have moved to re-establish it. It is in place now, and in fact it has met and provided initial inputs. It’s had a series of meetings on this particular issue, where it provides some guidance from the advisory board members. These are independent experts, as well as experts from different government departments who come together to advise the minister.

Read: South Africa wants to fix ‘hostile’ skilled worker visa regime [Jul 2024]

It also gave advice on the importance of consulting with the stakeholders themselves, the holders of these permits and other people affected by it. So that’s the second phase that we are now embarking on, the department putting together that comprehensive consultation plan.

But I think the key point I want to make is that it is just preposterous to say that this is something that undermines the rule of law.

We are fundamentally rebuilding the rule of law by re-establishing the Immigration Advisory Board and by complying with the Constitutional Court’s order. I find it quite strange, because the alternative here would have been somehow to take a decision without complying with the Constitutional Court order, and that is the thing that would have violated the rule of law.

JEREMY MAGGS: Minister, some of your critics are saying it’s a perpetual extension, or it appears to be. How then do you prevent this from becoming a rolling delay without any final outcome? How do you put pressure on the Advisory Board to act sooner rather than later here?

LEON SCHREIBER: Well, the reason it feels that way, Jeremy, is because of the way this process was never properly thought through from the beginning. We have to just be honest about that. This is not something that started yesterday or last year when I came into office. It feels like it’s been without a plan for a very long time. Because from the very beginning, it was granting extensive rights to people without properly thinking through what that means for the long-term future.

So I think I just want to point out as well that the numbers of people on these permits have actually reduced quite meaningfully over time, as people have transitioned to other visa categories as well. That is work that is going on in a dedicated workstream within the department.

I think the point is, you can only measure this administration’s work from what we’ve done since last year. You can’t measure us based on the frustration that’s gone back to 2009. We need to clean up some of the things that have gone wrong in that particular process. I think it’s clear that we’re making very good progress there.

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As I say, the Immigration Advisory Board is back in place after having been absent for a very long time, and it’s populated with really excellent people from across the board. It has provided those initial guidance and views, and really, the 18-month period we have in place now, based on the advice from the Immigration Advisory Board, gives us the opportunity to properly consult with permit holders and other affected people, and then we can make a decision.

I think it’s a much more structured, much more logical, much more constitutionally sound process than the one which came before. I think we simply cannot have this conversation without constantly acknowledging the fact that there is a Constitutional Court ruling on this. It’s not for the minister to just make something up. We have to comply with what the court has said, and we will do that.

JEREMY MAGGS: Notwithstanding, Minister, many permit holders still live in limbo. What about those whose lives — their jobs, housing, family plans and so on — are now being held hostage by this ongoing uncertainty?

LEON SCHREIBER: Yes, it really is so suboptimal across the board. I think it’s important to make the point as well that these are people who have complied with the law. They are documented. These are not illegal immigrants who came to South Africa without papers and are breaking South African law in the process.

It is people who responded to a decision taken back in 2009 by the South African government to say that we are making available this particular exemption permit. That’s exactly why the Constitutional Court has taken the view that it has. I think we need to keep in mind that when people try to reject this decision or try to have an issue with it, it actually exposes that their concern is not necessarily with illegal immigration, it seems to be even with legal immigration, with people who have followed the law.

We are very mindful of that in the process. We will not go back to a space where Home Affairs violates the law or violates people’s rights, or, as I’ve said from the start, politicises legal decisions in a way that actually damages the Constitution.

Read: ‘Help bring us home’ – Zimbabwean permit holders say life in SA has become intolerable

That’s why we’re quite clear on making sure that we try to deal with some of the problems that the holders of these permits are facing, and at the same time look at ways where people who may not have perhaps complied with South African law, who have broken the law since coming in, can be dealt with as well.

I always say, we have to be guided by the rule of law and that we cannot have a simple binary where we just say everything’s bad, or we can just turn a blind eye to everything on the other side. We have to actually have that nuanced conversation on the way forward.

I’m very confident that the Immigration Advisory Board is an excellent vehicle to help us do that, and now we just need to engage with those very people who have suffered this uncertainty for a very long time and see if we can find a consensus view on the way forward.

JEREMY MAGGS: What do you think that consensus view might look like? And what are your plans in terms of that engagement?

LEON SCHREIBER: I think the lesson from the Constitutional Court is that we should not pre-empt it in any way, Jeremy. So I’m going to be totally open to this process, certainly listening to the Advisory Board with an open mind, listening to the stakeholders with an open mind, and of course bringing in the clear legal advice.

I think the one thing I do want to emphasise for listeners is that I do not, under any circumstances, want Home Affairs to end up back in a space where it gets struck down by the highest court in the land. That’s the responsibility we have.

We have many problems in this country that are caused by politicians who run their mouths or pre-empt things or take populist positions.

Then, at the end of the day, when the court rules against them, they end up criticising the court. We’re not going to engage in that cycle. I’m going to respect this process. I think, frankly, every South African who wants to see the rule of law restored should support that particular process, because whatever our personal view may be, we have to agree that we have a Constitution in this country, and we have to rebuild faith in it. We have to restore its credibility. I think that’s the process that we’ve embarked on now.

JEREMY MAGGS: Leon Schreiber is the Minister of Home Affairs. Thank you very much indeed.

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