“If you’re going to make a decision that adversely affects particular rights holders, you give them the opportunity to make representation [before] making that decision,” says Nicole Fritz, outgoing head of the Helen Suzman Foundation (HSF).
It’s a basic precept of our law, yet home affairs minister Aaron Motsoaledi didn’t bother with this nicety in 2021 when, with the stroke of a pen, he blithely scrapped the Zimbabwean exemption permit (ZEP), altering the fate of 187,000 people.
“We had no notice period, no consultation whatsoever, and actually no data to explain why the minister had suddenly taken this decision,” Fritz tells the FM.
It set the scene for a high-stakes court battle this year between Motsoaledi’s department and the foundation. In the end, the HSF won, securing a stay of execution for the 187,000 permit holders until the end of 2024.
But it was a fight that went far beyond administrative law; it exposed the underbelly of xenophobia against Zimbabweans who fled a failed economy back home — a failure partly enabled by South African government inaction in the first place.
Fritz first began working on Zimbabwe-related issues in 2008, after the national election Robert Mugabe’s Zanu-PF stole from the late Morgan Tsvangirai’s Movement for Democratic Change. In the lead-up to a runoff vote, all hell broke loose.
“There was a systematic onslaught on supposed opposition supporters, and that huge upheaval in Zimbabwe was to some extent facilitated by South African silence,” she says.
Thousands of Zimbabweans fled to South Africa which, in 2009, introduced an exemption to legalise the presence of 200,000 people. This permit was extended in 2014 and again in 2017.
Fritz says ZEP holders had “scrupulously observed [the law] to get those permits”, abandoning any rights to refugee status.
Then, out of the blue in November 2021, Motsoaledi said ZEPs would be terminated and holders would have a year’s grace to arrange new visas.
The HSF went to court, arguing it wasn’t realistic to expect people to get these new visas within a year — partly because of a colossal backlog in Motsoaledi’s department.
For Fritz, the state’s heavy-handed approach reveals not just a creeping xenophobia, but a disturbing shift to authoritarianism.
“This is perhaps a problem of dismal governance failure, but also incumbency,” she says. “The idea that your occupation of these roles is somehow a birthright. I think we have seen a failure to understand what the democratic process means.”
Motsoaledi responded to the HSF with chest-thumping outrage. He accused it of trying to “sabotage” the government, saying this was “a perfect example of the destructive role that some NGOs are capable of”.
“South Africa,” Motsoaledi said, “is now under the dictatorship of NGOs, with some having faceless and dubious funders. Their ultimate aim is to assist in the dislodgement of the government of the day.”
It seems unhinged, but Fritz says this is perhaps a reaction to the view of the HSF as a white, liberal organisation. “How dare we suggest we were more concerned for Africans than he was. This idea that his ministry should be subject to the oversight of the courts seems anathema,” she says.
Immigrants make an easy target given South Africa’s crushing jobless rate, now a world-beating 31.9%, and its deteriorating state services.
Motsoaledi’s fury helped stoke nationalist movements such as Operation Dudula and Put South Africans First, which argued the HSF was fighting for foreign nationals at the cost of South Africans.
Fritz says this is a betrayal of the ANC’s stated ideal of pan-Africanism.
“It speaks to a desperation in the ANC, a recognition that governance has been so dismal that you look for whatever scapegoat is available, which is playing to quite frightening forces in society,” she says.
Witness the egregious response to July’s horrific Marshalltown fire, in which 77 immigrants died in a derelict council-owned building. Joburg city speaker Colleen Makhubele immediately put the blame on NGOs, which had taken the city to court to stop it evicting people from hijacked buildings.
It’s especially cynical, given that civil society groups such as Equal Education, the Treatment Action Campaign, Gift of the Givers and the Organisation Undoing Tax Abuse have done more to advance constitutional principles than the politicians paid to defend these rights.
Fritz, who has two small children and faced death threats over the ZEP case, describes the attacks as “unnerving”.
She laughs off comments that members of the HSF — formed in 1993 in honour of liberal activist Helen Suzman — are “Nazi Zionists”, or that she is a German national agitating to undermine the state (she was born in Joburg).
Having begun her career as a legal academic, Fritz is now leaving the HSF to head the policy division in Roger Jardine’s new political party Change Starts Now.
Her political awakening, she says, began in her teens, when former president Nelson Mandela was released from prison in 1990. It made her realise that participation matters. “I really would like that for my children — to grow up excited about the prospects of this country. That it matters because of their participation and voice,” she says.