ZEP vs Asylum Seekers

PUBLIC LEGAL OPINION

Subject: Legal Distinction Between Zimbabwe Exemption Permits and Asylum Seeker Permits in South Africa
Date: July 2025
Prepared by: Litigo Labour Law

1. INTRODUCTION
   This legal opinion is issued in response to ongoing confusion among employers, stakeholders, and affected individuals regarding the legal status and implications of the Zimbabwe Exemption Permit (ZEP) and the Asylum Seeker Temporary Permit in South Africa. These two legal instruments serve entirely different purposes under distinct legislative frameworks and must not be conflated.
   
2. LEGAL FRAMEWORK
   2.1. Zimbabwe Exemption Permit (ZEP)
   The ZEP is issued in terms of section 31(2)(b) of the Immigration Act 13 of 2002¹. It is an administrative and discretionary exemption created by the Minister of Home Affairs to allow certain Zimbabwean nationals—who were already present in South Africa on or before a specified date—to regularise their stay for work, study, or residence.
   2.2. Asylum Seeker Temporary Permit
   This permit is regulated by the Refugees Act 130 of 1998, as amended², and provides temporary protection to foreign nationals who claim a well-founded fear of persecution, conflict, or serious harm in their country of origin. It is a precursor to a formal refugee status determination process.
   
3. PURPOSE AND LEGAL NATURE
   3.1. ZEP
   The ZEP is not based on humanitarian protection or fear of persecution. It is a pragmatic administrative solution, implemented initially through the Dispensation for Zimbabweans Project (DZP), followed by the Zimbabwe Special Permit (ZSP) and now the ZEP³. Its purpose is to allow lawful residence for economic migrants from Zimbabwe who meet the qualifying criteria.
   3.2. Asylum Permits
   These are protection-oriented permits issued to individuals who lodge a claim for asylum. They invoke the principle of non-refoulement⁴ and are processed through the Refugee Reception Offices. They are grounded in both South African law and international instruments such as the 1951 UN Refugee Convention, the OAU Refugee Convention, and section 2 of the Refugees Act⁵.
   
4. RIGHTS AND LIMITATIONS
   Legal Right/Consequence Zimbabwe Exemption Permit (ZEP) Asylum Seeker Temporary Permit
   Issued under Immigration Act⁶ Refugees Act⁷
   Claim of persecution required No Yes
   Right to work and study Yes Yes (per Watchenuka⁸)
   Change of status allowed No Not applicable
   Permanent residence path No Yes (if recognised as refugee⁹)
   Deportation protection Only while permit valid Full protection under s 2¹⁰
   Recent status Valid to 28 November 2025¹¹ Valid while claim is pending
   
5. RECENT DEVELOPMENTS
   5.1. In 2021, the Minister of Home Affairs announced the intended termination of the ZEP regime. This decision was challenged and eventually set aside by the High Court, which found that the Minister had failed to comply with lawful consultation requirements¹².
   5.2. The Court ordered that ZEPs be automatically extended to 28 November 2025. This extension does not create a pathway to permanent residence, nor does it transform ZEP holders into asylum seekers or refugees.
   5.3. Attempts by ZEP holders to lodge asylum applications without genuine grounds have been rejected by Refugee Reception Offices and may be considered an abuse of the asylum system.
   
6. LEGAL POSITION
   6.1. The ZEP and the asylum system are governed by separate legal regimes and have no functional overlap.
   6.2. ZEP holders cannot apply for asylum unless they independently meet the legal definition of a refugee under section 3 of the Refugees Act.
   6.3. Employers and public institutions must be aware that ZEP holders are not protected by refugee law, and that their permits are subject to expiry, unless extended again by the Minister of Home Affairs.
   
7. CONCLUSION
   The ZEP and asylum systems serve distinct legal purposes: one for temporary administrative regularisation, the other for humanitarian protection. These frameworks are not interchangeable. Employers, HR professionals, and Zimbabwean nationals should be careful not to conflate these legal statuses when making decisions about employment, immigration compliance, or legal rights.
   Should you require further advice on immigration status, employment verification, or compliance with South African labour and immigration law, our offices remain available for consultation.
   Issued by
   Litigo Labour Law
   An Expert Division of Litigo Legal (Pty) Ltd
   info@litigo.org.za
   www.litigo.org.za
   

FOOTNOTES

1. Immigration Act 13 of 2002, section 31(2)(b).
2. Refugees Act 130 of 1998 as amended by Refugees Amendment Act 11 of 2017.
3. See Government Gazette No. 31611 (DZP), No. 38755 (ZSP), and No. 41243 (ZEP).
4. Section 2 of the Refugees Act 130 of 1998.
5. UN 1951 Refugee Convention; OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.
6. Immigration Act 13 of 2002.
7. Refugees Act 130 of 1998.
8. Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA).
9. Refugees Act 130 of 1998, section 27(c).
10. Refugees Act 130 of 1998, section 2.
11. Government Gazette No. 49754, Notice No. 2426 of 2024 (dated 7 November 2023).
12. Helen Suzman Foundation v Minister of Home Affairs & Others, Gauteng Division, Pretoria, Case No. 53779/2021.