Press Statement on the granting of exemptions to the Lesotho and Zimbabwean nationals in terms of section 31 (2) (b) of the Immigration Act 13 of 2002
Background
0. Exactly eight years ago, the erstwhile Minister of Home Affairs decided to grant exemptions to the Lesotho nationals in terms of section 31 (2) (b) of the Immigration Act 13 of 2002 under certain terms and conditions. The decision was taken due to prevailing circumstances at the time, including easing the burden on the asylum system and the fact that most of the affected Lesotho nationals were in reality economic migrants.
1. The current exemption permits were granted in 2019. The permits issued to Lesotho nationals pursuant to the said exemption regime are approximately 54 653 and will expire on 31 December 2023.
2. The same process was followed in respect of approximately 178 000 Zimbabwean nationals starting from 2009.
Provisions of section 31 (2) (b) of the Immigration Act 13 of 2002
3. Section 31 (2) (b) of the Immigration Act 13 of 2002 bestows upon the Minister of Home Affairs wide powers to grant a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which would justify such a decision.
4. I have considered carefully the following special circumstances:
4.1 The exemptions issued to the Lesotho nationals will expire on 31 December 2023 and the validity of the exemption permits issued to the Zimbabwean nationals was extended by Minister’s directive no:2 of 2023 to 31 December 2023 and by the Court to 28 June 2024;
4.2 The decision not to extend the exemptions granted to the Zimbabwean nationals is a subject of litigation brought by Helen Suzman Foundation and others. The application for leave to appeal to the Supreme Court of Appeal (“SCA”) has already been launched, following dismissal of the application for leave to appeal the negative judgment. The parties are still in the process of exchanging the necessary court papers;
4.3 The outcome of the said application for leave to appeal to the SCA or any other appeal process is unknown at this stage;
4.4 The Department of Home Affairs (“DHA”) budgetary constraints;
4.5 The affected Lesotho and Zimbabwean nationals continue to be employed or study or conduct business in the Republic of South Africa;
4.6 The need to avoid unfair and differential treatment of the same category of foreigners in similar circumstances; and
4.7 All other relevant factors.
Lesotho nationals
5. I have decided to grant exemptions to approximately 54 653 Lesotho nationals for a period of two years. The affected Lesotho nationals will be entitled to apply for new exemption permits under the following terms and conditions:
5.1 A holder of the exemption permit will be entitled to work, seek employment and conduct business in the Republic of South Africa;
5.2 A holder of the exemption permit due to expire on 31 December 2023 or such extended period of validity will be entitled to apply for a new exemption permit;
5.3 A holder of the exemption permit will be entitled to sojourn in the Republic of South Africa during the validity of the exemption permit;
5.4 New exemption permits to be issued will expire on 29 November 2025;
5.5 A holder of the exemption permit will not be entitled to apply for permanent residence in terms of sections 25,26 and 27 of the Immigration Act 13 of 2002 or any other provisions in any other law, irrespective of the period of stay in the Republic of South Africa;
5.6 New Exemption permits will not be renewable;
5.7 A holder of the exemption permit will be allowed freedom of movement between Lesotho and South Africa or any other country;
5.8 A holder of the exemption permit cannot change his or her status in the Republic of South Africa as contemplated in section 10 (6) of the Immigration Act 13 of 2002 during the validity of the permit issued;
5.9 When a holder of the exemption due to expire on 31 December 2023 or such extended period apply for a new exemption permit, he or she must disclose and/or register all the minor children born and staying in the Republic of South Africa.
Zimbabwean nationals
6. I have decided to grant exemptions to approximately 178 000 Zimbabwean nationals for a period of two years in terms of section 31 (2) (b) of the Immigration Act 13 of 2002. The affected Zimbabwean nationals will be entitled to apply for new exemption permits under the following terms and conditions:
6.1 A holder of the exemption permit will be entitled to work, seek employment and conduct business in the Republic of South Africa;
6.2 A holder of the exemption permit due to expire on 31 December 2023 or June 2024 and such extended period of validity will be entitled to apply for a new exemption permit;
6.3 A holder of the exemption permit will be entitled to sojourn in the Republic of South Africa during the validity of the exemption permit;
6.4 Exemption permits to be issued will expire on 29 November 2025;
6.5 A holder of the exemption permit will not be entitled to apply for permanent residence in terms of sections 25,26 and 27 of the Immigration Act 13 of 2002 or any other provisions in any other law, irrespective of the period of stay in the Republic of South Africa;
6.6 Exemption permits will not be renewable;
6.7 A holder of the exemption permit will be allowed freedom of movement between Zimbabwe and South Africa or any other country;
6.8 A holder of the exemption permit cannot change his or her status in the Republic of South Africa as contemplated in section 10 (6) of the Immigration Act 13 of 2002 during the validity of the permit issued;
6.9 When a holder of the exemption due to expire on 31 December 2023 or 28 June 2024 or such extended period apply for a new exemption permit, he or she must disclose and/or register all the minor children born and staying in the Republic of South Africa.
7. I have issued directives extending the validity of the exemption permits in respect of the Lesotho nationals to 31 December 2024 and in respect of the Zimbabwean nationals to 31 December 2024. The directives are annexed hereto marked “A” and “B”. The directives will be published in the Government Gazette on Monday, 4 December 2023. It will be seen from the directives in respect of the Zimbabwean nationals that approximately 78 126 of those who applied for waivers and 10 427 of those who applied for other visas are afforded certain protections while they await the outcome of their waiver and visa applications. In other words, there is no need for them to apply for new exemption permits as the validity of their expired exemption permits has been duly extended.
8. I call upon all the affected Lesotho and Zimbabwean nationals to make use of the window of opportunity to apply for new exemption permits through VFS Global.
9. VFS Global has been instructed to distribute this press statement and directives directly to all affected Lesotho and Zimbabwean nationals without any further delay. VFS Global has also been instructed to fast-track the application process for new exemption permits.
10. A dedicated team will be set up to deal with the applications for new exemption permits.
All media enquiries must be directed to:
Thabo Mokgola (Spokesperson for the Minister of Home Affairs)
Cell: 060 962 4982
