Source: Migrant group sues Zimbabwe and South Africa over migration crisis – CITESW
A South Africa-based non-profit organization led by a Zimbabwean citizen has launched a legal challenge in a Pretoria court, seeking to hold both the Zimbabwean and South African governments accountable for alleged constitutional violations, human rights abuses and the migration crisis affecting the region.
The lead applicant is Dr Vusumuzi Sibanda, a Zimbabwean citizen and permanent resident of South Africa, chair of the African Diaspora Global Network, an organization that advocates for the rights of migrants.
Dr Sibanda filed the notice of motion and founding affidavit in the Gauteng Division of the High Court in Pretoria.
The application names nine respondents and the first six are the Government of Zimbabwe, President Emmerson Mnangagwa, the Speaker of the Parliament of Zimbabwe, the Speaker of the Senate of Zimbabwe, the Chief Justice of Zimbabwe and the Embassy of Zimbabwe in South Africa.
The seventh to ninth respondents are the Government of South Africa, President Cyril Ramaphosa and the Speaker of the South African Parliament.
In the application, which is described as sui generis (unique in nature), the applicants argue that the case should be heard in South Africa “in the interests of justice”, arguing that the country has become home to hundreds of thousands of Zimbabweans who are allegedly fleeing governance failures and rights abuses in their home country.
The affidavit said Zimbabwe's sovereignty “cannot be seen as being jeopardized” because “such sovereignty has been shared through the actions of Zimbabwe, which has shared its problems with South Africa without a formal invitation.”
At the heart of the application is a challenge to Zimbabwe's proposed Constitutional Amendment Bill No. 3, which the applicants argue is a “violation of the will of the people” and violates section 328(7), (8) and (9) of the Constitution of Zimbabwe.
The applicants want the South African court to declare that the South African government has become “complicit” by allegedly failing to hold Zimbabwe accountable for “undemocratic” actions aimed at undermining the constitutional order and separation of powers.
They are also seeking an order binding South African authorities over their alleged “failure to act” on human rights violations, including pursuing international legal avenues through the International Court of Justice (ICJ) and the International Criminal Court (ICC).
In his founding affidavit, Dr Sibanda, who identifies himself as a Zimbabwean citizen and permanent resident in South Africa, strongly criticizes Zimbabwe's ruling Zanu PF party and President Mnangagwa.
He alleged that the change of power in 2017 following the removal of former President Robert Mugabe “was tantamount to a coup, which was rejected by most African states and the West because it was seen as the better devil of the two.”
The affidavit further argues Zimbabwe Constitutional Amendment Act No. 2 and proposed Amendment No. 3 Bill Systematically weakened checks and balances, subordinated the judiciary to the executive and undermined the 2013 Constitution adopted through a national referendum.
The application also draws parallels between the historical treatment of the Ndebele people of Zimbabwe and South Africa's 2023 case against Israel at ICJ on Gaza.
The affidavit alleges that “acts of genocide have been committed in Zimbabwe since 1980” and specifically references President Mnangagwa's tenure as Minister of State Security during the Gukurahundi period between 1982 and 1987.
It calls on the South African government to take action against Zimbabwe over alleged human rights violations related to Gukurahundi.
The application also cites alleged errors in Ndebele translations such as the Zimbabwean passport as evidence of the erosion of Ndebele language and culture.
The seventh to ninth respondents, the South African government, President Ramaphosa and the Speaker of Parliament, have been accused of relying on “quiet diplomacy” and failing to publicly challenge Zimbabwe's governance practices.
The affidavit argues that South Africa cannot invoke sovereignty as a shield against the case because Zimbabwe had already benefited from South African courts, citing a lawsuit brought in South Africa by the Zimbabwe Anti-Sanctions Movement against United States sanctions.
“Zimbabwe also showed interest and posted the case through its state-owned broadcaster ZBC… so what's good to watch must be good for the swans,” the affidavit reads.
A main argument made by the applicants is that Zimbabwe's governance failures have directly contributed to mass migration to South Africa, placing pressure on public services.
It further alleges that undocumented migration has contributed to criminal activity, claiming that “the vast majority of unsolved crimes are attributable to the class of people who are undocumented.”
The application also cites President Mnangagwa's temporary stay in South Africa during the 2017 military intervention as evidence that “South Africa is a playground for all of Zimbabwe's problems.”
Dr Sibanda is asking the court to apply South Africa's constitutional philosophy of Ubuntu in determining the case, which he says “emphasizes human dignity and human rights and freedoms, not just South Africans”.
The affidavit argues that migration should not be considered solely as a border control issue, but as a result of governance failures in migrants' countries of origin, which it is the responsibility of host states to address.
Approximately 178,000 Zimbabweans hold Zimbabwe Exemption Permits (ZEPs). The applicants argued that there are many other undocumented migrants living in South Africa and there.
“To refuse to take decisions on such matters would be to leave the people of Zimbabwe without any protection, but they would be the permanent victims of the government.”
“The sovereignty principle must be exposed where it is used to cover up and hide horrific corruption and murder cases and human rights abuses.”
The hearing date will be set by the Clerk of Court “in the interest of justice and observance of human rights,” according to the notice of motion.
The application was filed electronically on May 21, 2026 in the Gauteng Division of the High Court in Pretoria.
Court papers are expected to be served to the Zimbabwean Embassy in Pretoria, which is representing the first to sixth respondents, and the South African State Attorney representing the seventh to ninth respondents.