The South African government has not extended the validity of Zimbabwean Exemption Permits beyond June 2023. ZEP holders must secure a different visa by June 30, 2023, in order to stay in South Africa legally.
The ZEP program began when the South African government granted “special dispensation” for Zimbabweans who were in the country illegally, many of them having had fled violence and instability in Zimbabwe. The South African government replaced the Special Dispensation for Zimbabweans with Zimbabwean Special Permits in 2014 and again in 2017 with the introduction of the ZEP.
What does this mean for an employee that holds a ZEP Permit and is currently employed:
They will be considered illegal immigrants after 30 June 2023 if they do not apply for either a waiver or another mainstream visa which they may qualify for, as requested by the DHA, such as:
ZEP holders cannot apply for permanent residence permits.
All visa applications must be done via VFS, not at a DHA office/branch. All applicants must complete the online VFS application process first, in order to obtain an appointment date at their nearest VFS office, and after the online procedure the application is to be handed in, in person, at the relevant VFS office/branch.
It is very important to take note that subject to proof of a VFS (Visa Facilitation Services) receipt for the application for another work permit or visa, a ZEP holder is still allowed to perform work, even after the expiry date of 30 June 2023, until they receive the outcome of their visa application; they are also entitled, subject to proof of their VFS-application receipt, to continue receiving other South African services from banks, financial- and/or learning institutions.
Employers are urged to give an employee a reasonable opportunity to provide proof of a valid VFS (Visa Facilitation Services) receipt or work permit. It would also be advisable to show that the employer provided the employee with the necessary assistance to obtain another permit where his/her work permit has lapsed.
If the employee is still unable to provide proof of a valid VFS (Visa Facilitation Services) receipt or work permit after the 30th of June 2023, an incapacity hearing should be held where the employer should investigate whether the employee is in possession of a valid work permit and therefore able to comply with his/her duties and responsibilities. Employees may not be dismissed out of hand once their permits expire without a valid reason and without following a fair procedure, and employers must take care to uphold employees’ rights in this regard. Whether a person is an undocumented immigrant does not affect their rights in terms of the constitution or the Labour Relations Act.
In investigating the employee’s capacity to perform their duties, the employer must consider granting the employee reasonable time off and assistance in applying for an alternative visa.
Section 38(1) of the Immigration Act states that: “no person shall employ an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such a person; or a foreigner on terms, conditions, or in a capacity different from those as contemplated in such foreign status”.
Section 49(3) of the same Act states that, “Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act shall be guilty of an offence, and liable on conviction to a fine or to imprisonment not exceeding one year, provided that such person’s second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding three years without the option of a fine”.
The Employment Services Act, Act 4 of 2014, further stipulates that ‘’an employee without a valid work permit is entitled to enforce any claim that the employee may have in terms of statute or employment relationship against his or her employer or any other person who is liable in terms of the law.’’
It is clear from above that the liability to ensure that employees have the necessary legal status to be employed rests with the employer.
Written by LabourNet
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)