The Minister of Home Affairs had effectively ended the ZEP, which applies to Zimbabwean Nationals working and living in the Republic of South Africa, resulting in numerous Zimbabweans no longer being able to apply for an extension of the ZEP and, as a result, facing deportation should they not have applied and or been granted the different kinds of visas allowing them to continue to stay and work in the Republic.
However, this week, the decision by the Minister of Home Affairs to terminate the Zimbabwean Exemption Permit (ZEP) has been declared unlawful, unconstitutional, and invalid by the High Court, and the Minister has been instructed to follow a fair process complying with the applicable laws.
Accordingly, the ZEP has been extended until June 2024. Pending the outcome of the process, the permit will remain valid for another year. The consequence is no exemption holder may be arrested or deported for not having the correct documentation.
Compliance with Immigration Laws
Employees are urged to take advantage of the extended period provided and apply for the other types of visas and waivers for which they may qualify under the Immigration Act. Failure by employees to apply and obtain such other visas or waivers will lead to such employees being considered illegal in the Republic of South Africa upon the expiry of the period and result in their continued employment by businesses in South Africa is considered unlawful.
Employers are reminded: an employer commits a criminal act by employing or keeping in his/her employ an employee who is illegal in the eyes of the Immigration Act (i.e. possessing no legal documentation which permits residence or working within the Republic of South Africa), South African Police Service (SAPS) appears to be clamping down on businesses who have in their employ an employee(s) who possess no valid documentation – resulting in the arrest of both the ‘illegal’ employee as well as the employer, subject to substantial fines imposed on the employer and the threat of deportation of the employee.
Understanding the Distinction
A distinction should be drawn between foreign employees that fall under the ZEP and those who do not have any valid documentation legalising their stay and approval to work in South Africa. For ZEP workers, the purpose of the ultimatum process is to make employees aware of the imminent expiry of their permits, allowing them to work in South Africa legally and that they are responsible before the expiry date to obtain valid permits and or visas to be considered legal and employable, failing which their employment will be terminated through due process.
Where a foreign employee does not fall under the ZEP (i.e. non-Zimbabwean foreign national), the employee is required to have a valid work permit and or visa. Without such, a valid permit and or visa and or on expiry of any such documentation, the employee is considered illegal and legally unemployable, leaving both the employer and employee criminally in contravention.
No ultimatum and or documentation indicating that the employee is in the process of obtaining their papers negates such culpability and or suspends the illegality of the employment of such an employee. Such an employee should be placed in an incapacity inquiry without delay, where through the fair procedure, the employment relationship is terminated.
Ensuring Compliance and Terminating Employment for ZEP Holders
Employers are urged to ensure ultimatums are issued to employees advising them of the extended period and timeline in which they are required to obtain the required alternative visa or waiver. Employers are further advised to follow up on the progress of such employees applying for different visas, and should they not obtain such alternative visas or waivers, their continued employment must be terminated.
It is of paramount importance to understand: should the ZEP expire, all ZEP holders become illegal immigrants within the Republic of South Africa; this means upon expiry, any company employing ZEP holders, who at the time has not complied with obtaining any other valid VISA to allow them to continue residing and or working in the Republic, can no longer permit legal employment.
In such instances, the employer must follow fair procedure in terminating the employment relationship by conducting an incapacity inquiry to ensure compliance with the Immigration Act and avoidance of criminal proceedings in the personal capacity of the business owner.
Avoid Risks and Seek Assistance
We reiterate that it is not advised to stagger any incapacity inquiries and/or termination of ZEP employees within their workforce in that this poses additional risk to the company and the business owner in his/her capacity.
We strongly encourage employers that should you require any assistance regarding the ZEPs, Final Ultimatum and incapacity inquiries or have any queries, kindly contact our Invictus team on 0861 737 263 or your designated consultant.