Employers ‘Exit Strategy’ in respect of Zimbabwean Exemption Permit Holders

10 June 2022

The Zimbabwean Exemption Permit (ZEP) was implemented by the Department of Home Affairs in 2017 with the aim of regularising the stay of undocumented Zimbabweans in South Africa. Zimbabweans were offered free temporary work and study permits, issued until December 2021. 

With the looming expiration of Zimbabwean Exemption Permits the following ‘exit strategy’ is advised:

These ultimatums are to be treated as a guideline and the employer can alter the wording, as long as the underlying messages remain the same.

Step 1:

First Ultimatum [in writing]:

To be given to all ZEP permit holders as soon as reasonably possible

1. Inform all ZEP permit holders that they have until December 2022 to ensure that they have applied for another category of visa.

• There are two categories of visas that majority of ZEP holders can apply for, namely (1) critical skills visas, or (2) general visa (further information provided below). 

2. In the event of no other category of Visa being applicable to the employee, the employee should be informed that the employer can no longer accept the ZEP permit as from 1 January 2023. 

• This essentially means that the employee, as of 1 January 2023, would no longer be allowed to work for the company due to illegality of same, consequently should the employee be unable to secure another valid visa, the employment relationship will be terminated. 

3. The ZEP permit holder must be informed that they are required to provide the employer with proof that another category of visa has been applied for in order to secure continued employment from 1 January 2023.

• Proof must be in the form of a receipt from Visa Facilitation Services Global. 

Second Ultimatum [in writing]:

To be given to all ZEP permit holders approximately 3 (three) months after the First Ultimatum

4. The employer refers to the First Ultimatum issued and reminds employees of the contents thereof.  

Third Ultimatum [in writing]:

To be given to all ZEP permit holders approximately 3 (three) months after the Second Ultimatum

5. The employer refers to the First and Second Ultimatums issued and reminds employees of the contents thereof.  
6. The employer then informs all applicable employees who have failed or alternatively refused to provide proof of their application for an alternative visa, which has subsequently been verified by Visa Facilitation Services Global, that the deadline for same is 1 December 2022. The employer should further inform the employees that failure to adhere to the submission deadline may subject the employee to an incapacity inquiry due to impossibility of legally rendering services to the employer within the Republic of South Africa.

Step 2:

Notice to Attend an Incapacity Inquiry [in writing]

To be given to all ZEP permit holders on or about the 19 December 2022 who have failed to comply with Ultimatums  issued.

7. Incapacity inquiries to commence from 2 January 2022 (or as soon as the company re-opens from the Festive Season break). These incapacity inquiries can be scheduled through Invictus.
8. As of the 1^st of January 2023, all employees who are not in possession of the required Visa will be treated on a “no work no pay” scenario. 

Below is a breakdown of the various categories of visas applicable to ZEP permit holders:

1. The critical skills visa;

This type of visa may only be obtained should the employee applying for same possess a specific skill(s), as determined by the Critical Skills listed contained in the Immigrations Act No. 13 of 2002 (as amended). For ease of reference, may be accessed by way of the following link:http://www.dha.gov.za/images/notices/Gazetted_Critical_Skills_List_2022-compressed.pdf

Once it is established that the employee qualifies for such a visa, that employee will have to produce the following documentation in conjunction with the application: 

1. proof of their qualification(s) as well as experience which would then have to match an item on the aforementioned list,
2. a letter written by the professional body where the qualification(s) was obtained indicating that the qualification(s) obtained is similar to the ‘Critical Skills’ version of that qualification,
3. two references verified by Sterling or MIE.

It should be duly noted that the employee, in the event of successful application for a critical skills visa, cannot receive an employment contract longer than 5 (five) years with the company.

2. The general visa;

This type of visa dictates that the employee applying for same is capable of performing a ‘job’ that no one else within the Republic of South Africa is capable of performing. Should the employee be unable to prove this, application for a ‘waiver’ of this requirement may be made, with the Department of Labour. An applicant for ‘waiver’ may include that the function for which the employee is employed is very specialised and that the function has been performed for numerous years. Before an employee is able to make application for ‘waiver’ a certificate from the Department of Labour must be obtained, which would stipulate that despite diligent searching, the employer was not able to locate a South African to perform that function for which the employee is employed. The application for ‘waiver’ would be made on the backdrop of said certificate. 

• In order to obtain such a certificate from the Department of Labour, the following steps are to be followed:

1. the employer must advertise the job in the newspaper;
2. the recruitment process will then reviewed by the Department of Labour, 
3. a site inspection will be done by the Department of Labour. 

It is important to note that when application for ‘waiver’ by an employee is made, the Department of Labour does not provide said employee with an outcome to said application, meaning that the employee would have to apply to Home Affairs (whilst not knowing the outcome from Department of Labour) for this category of visa. What is of further importance is that such an application must show good cause as to why the employee should get (keep) his/her job. An application for ‘waiver’ may take between 3 (three) and 4 (four) months and are rarely granted. 

3. A study visa;

In respect of this particular type of visa, an employee is not permitted to work more than 20 (twenty) hours in (1) one week. 

It is important that employers are proactive in managing employees that are ZEP permit holders as acting early will eliminate problems later on. 

Should you require a formal audit of your current workforce, please contact Invictus Group on 0861 737 26. We have aligned with a law firm that specialises in Immigration Law, thus ensuring that our clients are in compliance and protected. Our team of experts are here to assist you with best practice solutions.