Transcript

Jose Jorge: Welcome to the CDH Conversations podcast and depending on what time of the day you're listening to this, good morning, good afternoon or good evening. My name is  Jose Jorge and I'm a director in CDH's Employment Law Department in Cape Town. Today I'm in conversation with Taryn York. Taryn's an associate in our Johannesburg office and she specializes in Employment Law and Immigration Law. We're going to be talking about the imminent deadline for ZEPs and for those of you who don't know ZEPs are the Zimbabwe Exemption Permits.

In the early 2000s, because of the political and economic situation in Zimbabwe, there was a great influx of Zimbabwean nationals into South Africa and often illegally. Then in 2009 something called the Dispensation of Zimbabweans Project or DZP was introduced and this provided amnesty to Zimbabweans in South Africa without permits. In 2014 the DZPs expired and they were replaced by these Zimbabweans Special Dispensation Permit and those are valid for three years, and in 2017 those are replaced by the current ZEPs.

On 29 November 2019 cabinet decided that there'd be no further ZEP extensions and cabinet gave ZEP holders a grace period of 12 months to 31 December 2022 to legalize their status in South Africa. Despite the no-further-extensions decision by cabinet in September 2022 these ZEPs were again extended to 30 June 2023 and that date is now upon us.

By some estimates there are almost two millions of Zimbabweans living in South Africa and many have put down roots and they've made their homes in South Africa. They've jobs here, their kids are at schools in South Africa and in many sectors, and I'm thinking especially about retail, transport and hospitality, Zimbabweans play a vital role in our economy. The 30^th of June deadline is going to have a profound effect on ZEP holders living in South Africa. So good morning, Taryn.

Taryn York: Good morning, Jose. Thank you for having me.

Jose Jorge: So is there likely to be another extension?

Taryn York: At this stage it's not very clear whether another extension will be granted to ZEP holders. I mean it is possible that the department may extend these ZEPs again for an additional period but it's safer for all ZEP holders to assume that no further extensions will be granted and to prepare on this basis.

Jose Jorge: Taryn, what happens on the 30^th of June to ZEP holders living and working in South Africa?

Taryn York: After the 30^th of June any ZEP holders who have not obtained an alternative visa will need to leave South Africa unfortunately.

Jose Jorge: And is there any way that Zimbabweans who were on ZEPs can actually legally stay in South Africa?

Taryn York: They are. The purpose of the initial 12 month grace and the further extension was to afford all ZEP holders with an opportunity to apply for an alternative visa. So if they obtain an alternative visa they can legally stay in South Africa after the 30^th of June 2023.

Jose Jorge: And what kinds of permits can ZEP holders apply for?

Taryn York: There are quite a number of options that ZEP holders can apply for depending on whether they need the specific requirements of the visa.

• These visas include a critical skills visa which is valid for up to five years.
• You could then apply for an intra-company transfer visa which is valid for a period of up to four years.
• A general work visa which is valid for up to five years.
• You could also look at applying for a study visa which is valid for the duration of the specific course or qualification that they would be studying for, or
• a spousal or relatives visa.

Those are such as some of the options they could consider.

Jose Jorge: Can you work on a study visa?

Taryn York: You can work on a study visa to a maximum of 20 hours per week.

Jose Jorge: Okay and these visas, do the ZEP holders have to apply for them outside South Africa or can they do it from within South Africa?

Taryn York: They can apply for these visas within South Africa. There are certain circumstances where you'd have to apply outside of South Africa but for the most part you can apply in South Africa.

Jose Jorge: Taryn, how long does it take to get these visas?

Taryn York: Honestly Jose, how long is a piece of string? Unfortunately it's not really possible to say how long it will take to obtain a visa due to the backlog at the department of home affairs at the moment.

Jose Jorge: And if a ZEP holder has applied for another type of visa and it hasn't been issued by the deadline, what does that mean for the ZEP holder?

Taryn York: Unfortunately if they haven't obtained their visa by the 30^th of June 2023, they cannot continue to work after that date unless they fall within the category of foreign nationals who had pending visa or waiver applications as at the 31^st of March 2023.

In those instances the current status of their permits would have been extended until the 31^st of December 2023 due to the backlog in the processing of these applications. So it really does depend on when they applied for their visas and when their visas were pending from.

Jose Jorge: So if they applied timeously but the visa wasn't issued yet on the 30^th of June does that mean they have to leave the country or can they stay while that visa is pending?

Taryn York: They can stay while the visa is pending.

Jose Jorge: Okay but they just can't work?

Taryn York: If their visas were pending or their visa applications or waiver applications were pending as at the 31^st of March, they can continue to work based on their current status, not thereafter.

Jose Jorge: And as an employer in South Africa, can you employ a foreign national without a valid work permit?

Taryn York: No, the position in the Immigration Act is quite clear. No employer can employ a foreign national without them being in possession of a valid work permit or visa, authorizing them to work in South Africa.

Jose Jorge: And what are the consequences as a SA employer actually employ a foreigner who doesn't have a valid work permit?

Taryn York: So because one of the obligations that are placed on South African employers when employing any foreign nationals is that they need to make a good faith attempt to ensure that all foreign nationals are in position of a valid work visa or permit. If they do not employ a foreign national with a valid visa or permit, they could face imposition of a fine or imprisonment upon conviction. And persons that can be arrested from an employer includes the employer's CEO or human resources manager.

Jose Jorge: Sure, okay so that's quite severe. Are there any tips that you have for employers who are trying to help ZEP holders get work visas?

Taryn York: While it may already be too late for ZEP holders to obtain an alternative visa by the 30^th of June, because this should have been done timeously, employers can assist them by:

• Providing them with any supporting documents that they need for purposes of submitting their visa applications.
• They can grant them a day special leave in order for them to submit their visa applications.
• They can assist them by trying to place pressure on the Department of Home Affairs to finalize their applications as soon as possible.

Those are some of the things employers can consider doing to assist their ZEP holders.

Jose Jorge: Come the 30^th of June if I'm an employer and I have an employee who pitches up at work and doesn't have a valid work visa from that date, what are my options as an employer there, what do I have to do?

Taryn York: I think one thing that's very important to note is that even if your employee is a foreign national without a work visa or permit they are still classified as or they still fall within the definition of an employee in terms of the Labour Relations Act. So that means that they still afforded all the same protection as an ordinary South African employee. And ultimately what this means is that despite their status or the status of their work visas in South Africa, they cannot be dismissed without a fair reason or without following a fair process. So all the ordinary processes as required by Labour Relations Act must still be followed in terms of the foreign employees and this was set out in the case of Discovery Health Limited v CCMA and Others.

Jose Jorge: So I guess your reason would be that they can't legally work here and then you'd have to give them a hearing and listen to what representations they have to make.

Taryn York: Yes, you can consider following an incapacity process on the basis that they're not legally authorized to work in South Africa and provide them with an opportunity to submit their representations and then finalize the process after considering those submissions.

Jose Jorge: Thanks for your insight, Taryn. This is a very complex issue that I'm sure quite a few employers are going to be struggling with towards the end of this month. That's all we have for this particular installment of the CDH Conversations podcast. Join us in conversation soon when we have another topical issue in the world of work. Thank you.

Taryn York: Thank you.