The main laws in post-apartheid South Africa relevant to cross-border mobility are the Immigration Act and the Refugee Act. However, the Zimbabwean influx did not fall squarely in the purview of either of these laws because the over-whelming majority of Zimbabweans were not eligible for either work permits or refugee status. Despite this situation, there was a failure to produce alternative migration legislation to make provision for large-scale mixed migration (Polzer 2008). The application of the existing legal framework to the address the situa-tion of the Zimbabweans is best understood as divided into two phases, pre- and
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post-April 2009. Until April 2009, the main policy toward Zimbabweans was
“arrest, detain, and deport” for all those outside formal asylum or labor migra-tion channels. After April 2009, there were some attempts to adapt policy and the application of existing legislation.
However, even before April 2009, the unique features of the South African asylum system provided the main route through which most Zimbabweans were able to acquire at least some form of legal status. As we have seen, within South Africa, anyone who wishes to seek asylum can claim an asylum seeker permit (under Section 22 of the Refugee Act), which confers on asylum seekers the right to work and freedom of movement until such time as their refugee status determination (RSD) procedure takes place and the state judges them to be a refugee or not. These permits are available at the main government Refugee Re-ception Offices (RROs) in Johannesburg, Pretoria, Port Elizabeth, Durban, and Cape Town (with an additional one in Musina from June 2008 until February 2009 and at Marabastad near Pretoria beginning in April 2009). The Refugee Act does not specify a time limitation for the permits, which vary between one and six months and are renewable. Given the backlog in RSD, many Zimbabweans have, in practice, been able to hold asylum seeker permits for a significant period of time. This unique feature of the South African asylum system has been the principal way in which existing legislation has offered some form of at least tem-porary legal status to many of the Zimbabweans. In the words of UNHCR, “the easiest (and in most instances the only) way for Zimbabweans to remain legally in South Africa and to work there is to submit an application for refugee status”
(Crisp and Kiragu 2010).
However, UNHCR has described the reliance on the asylum system as “seri-ously dysfunctional” (Crisp and Kiragu 2010). Not only has it placed enormous strain on the asylum system itself, but it has also left significant protection gaps for the Zimbabweans. Especially until April 2009, this reliance on the asylum sys-tem left many Zimbabweans liable to arrest, detention, and deportation. Indeed, there were reasons why many people would be stopped by police and detained before obtaining an asylum seeker permit. First, people were often stopped in transit to the limited number of RROs. Although the Department of Home Af-fairs can and has at times issued an asylum seeker an asylum transit permit under Section 23 of the Immigration Act, which is intended to enable an asylum seeker to travel from a port of entry to a Refugee Reception Office to apply for asylum, this kind of permit has been issued for only limited periods (in Musina after February 2009).
Second, getting entry to the RROs has not always been straightforward. For example, in early 2009, the Johannesburg Refugee Reception Office located at Crown Mines, near Soweto, which has the capacity to deal with up to 700 cases
per day, was receiving more than 2,000 people per day, and in 2008 the number peaked at around 3,000 per day. Those wishing to seek asylum, or to acquire an asylum seeker permit, are met on a “first come, first served” basis each morning, with those beyond the first 700 being turned away and having to wait until the next day to try to make it to the front of the line. 8 In this situation, bribery and corruption became a means of access to the building. 9 Those awaiting access to the facility often camp on vacant land near the reception center, which is housed in an industrial park. Without the valid asylum seeker permits the Zimbabweans are attempting to obtain from the reception center, they face police harassment and the risk of being rounded up, detained, and deported (Vigneswaran et al.
2010).
Furthermore, once RSD was complete, the Zimbabweans were no longer able to receive asylum seeker permits unless recognized as refugees and were liable for arrest, detention, and deportation. The refugee recognition rate for Zimba-bweans has been extremely low. In the first decade of the 2000s, the Department of Home Affairs had an informal practice of rejecting all Zimbabwean applica-tions (Polzer, Kiwanuka, and Takabvirwa 2010). Even at the peak of the crisis in 2008 and 2009, the refugee recognition rate was only around 10 percent of Zimbabweans, and refugee status was made available only to people individu-ally persecuted because of direct political links to the opposition MDC. 10 The majority of Zimbabwean claims were regarded as “manifestly unfounded.” Fur-thermore, significant concerns were raised about the poor quality of the process, which has generally involved rapid and illogical decision making (Amit 2010) and was described even by South African government officials as “a joke” (Crisp and Kiragu 2010, 17).
Yet once outside this system, Zimbabweans have been at risk of deportation—
especially because many police officers have used their discretion in detaining illegal immigrants as a means to extort bribes (Vigneswaran et al. 2010). Accord-ing to the Department of Home Affairs’ own statistics, around 150,000 people were deported each year between 2001 and 2003, increasing to 175,000 in 2004, 200,000 in 2005, 250,000 in 2006, and 300,000 in 2007 and 2008 (Vigneswaran et al. 2010, 466; Crisp and Kiragu 2010). It has been suggested that a sizable ma-jority of people recorded in these government statistics are Zimbabweans (Polzer 2008, 8).
Around the time of the peak outflow in 2008, the government came under increasing international scrutiny and pressure relating to its treatment of Zim-babweans. A range of policy options were discussed regarding how existing legislation could be applied to provide formal status. Two options were widely debated. One was the possibility of applying the broader refugee definition con-tained in the OAU Refugee Convention and covering events “seriously disturbing
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public order” in the migrant’s home country (Polzer 2008). Indeed, South Africa’s Refugee Act incorporates both the 1951 and OAU conventions. However, both UNHCR and the government resisted this option on the grounds that this clause in the OAU convention “lacks doctrinal clarity” (Crisp and Kiragu 2010). Beyond that, a more serious suggestion was made, based on recognition that Section 31(2)(b) of the Immigration Act allows the Home Affairs Minister to “grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when there are special circumstances.” Refugee rights advocates—and UNHCR—began lobbying the government to grant Zim-babweans temporary residence permits under Section 31(2)(b).
Emerging from this discussion, and the recognition of the inadequacies of the response up until that point, several policy proposals were made in April and May 2009. First, in April, Home Affairs Minister Mosiviwe Mapisa-Nqakula an-nounced a moratorium on deportations and a temporary “special dispensation permit” for all Zimbabweans under Section 31(2)(b) of the Immigration Act.
Second, in May, the government announced a three-month visa waiver for all Zimbabweans in line with the provisions of the Southern African Development Community (SADC) Protocol on the Free Movement of Persons. Third, an ad-ditional RRO outside Pretoria, reserved for use by people coming from other SADC countries, was established to take pressure off the other RROs.
However, all these policy proposals had limitations. First, the permit system was not implemented, and Mapisa-Nqakula left office two weeks after making the announcement (Crisp and Kiragu 2010). Furthermore, although deporta-tions were formally stopped, there were reports that the South African Police Services (SAPS) continued to deport in the aftermath of the announcement (Mé-decins Sans Frontières 2009). Second, the three-month visa waiver applied only to Zimbabweans with travel documents, and in practice, obtaining a passport in Zimbabwe is difficult and can cost more than eight hundred dollars. Third, although the new RRO was opened at Marabastad, the backlog of RSD decisions remained at around 400,000 and most Zimbabweans in the country continued to lack formal status (Tshisela 2010).
Even these limitations aside, the lull in South Africa’s restrictive response proved short-lived. The moratorium on the deportation of Zimbabweans ran only from May 2009 until October 2011. During that period, the government im-plemented the Zimbabwean Dispensation Project (ZDP), which provided a short window (September 2010–December 2010) during which Zimbabweans without status could attempt to obtain either asylum seeker permits or temporary work, business, or study permits for up to four years. By the time applications submit-ted during the window were processed in August 2011, it was revealed that just 275,000 of the estimated 1–1.5m illegal Zimbabweans had applied. One of the
biggest weaknesses was that use of the system had required applicants to have a Zimbabwean passport, which are often expensive and difficult to obtain. In the words of CoRMSA, “the entire process was held to ransom by the Zimbabwean authorities’ ability to make passports available” (Consortium of Refugees and Migrants in South Africa 2011).
In October 2011, Home Affairs Minister Nkosazana Dlamini-Zuma pro-claimed that “those who have failed to take advantage of this [ZDP] process will in due course face the full consequence of South Africa’s immigration laws”
(IRIN 2011a). The number of documented deportations at the Beitbridge bor-der crossing was 7,755 between October and December 2011 and 7,177 between January and March 2012 (Solidarity Peace Trust 2012). The brief moratorium for Zimbabweans was effectively over.