- The Helen Suzman Foundation has gone to court to challenge Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit.
- The permit allows around 178 000 Zimbabwean nationals to live and work in South Africa.
- The court heard on Wednesday that Motsoaledi’s decision did not take the rights away from permit holders but conferred them.
Home Affairs Minister Aaron Motsoaledi’s decision not to create a further exemption programme for around 178 000 Zimbabwean nationals living in South Africa does not take away their rights – it confers them.
This was one of the arguments by Motsoaledi and the Department of Home Affairs’ director-general in a court challenge by the Helen Suzman Foundation which is being heard in the Gauteng High Court in Pretoria.
During the economic and political strife in Zimbabwean in 2008 and 2009, many of the country’s nationals fled to South Africa.
The South African government at the time decided to create a blanket exemption so Zimbabweans could get permits to live and work in the country legally.
The permits were effectively extended by creating another permit over the years and have since become known as the Zimbabwean Exemption Permit (ZEP).
In December 2021, Motsoaledi announced the termination of the ZEP, effectively announcing no further exemption would be created for holders and their children.
This decision was challenged by the foundation, which argued in court Motsoaledi’s decision was procedurally unfair and irrational.
It said he did not consider the impact this would have on ZEP holders, and it infringed on their rights.
On Wednesday, advocate Ismail Jamie SC, for the minister and director-general, dismissed the issues raised by the foundation and premised the respondents’ arguments around the fact the decision made was a policy decision.
Jamie argued such a policy decision was not up for judicial scrutiny and only the policy’s implementation could be challenged in a court of law.
In terms of the implementation, he said this was ongoing as ZEP holders were given until June 2023 to regularise their stay in South Africa by applying for other visas or asking to be exempt from the expiration of the ZEP.
Jamie added giving a blanket exemption to Zimbabwean nationals entering South Africa in the 2000s was a policy decision based on the issues in the neighbouring country at the time.
Similarly, the decision to not create a further exemption was also based on policy, which he said was based on rational reasons that included budgetary constraints, improvements in conditions in Zimbabwe, and a backlog in the asylum system.
The decision was also placed under the spotlight on whether Motsoaledi terminated the ZEP or if it expired because of the effluxion of time.
It was argued the minister did not decide to terminate the ZEP but extended its validity to help holders get their affairs in order.
Motsoaledi said this decision did not remove the rights of ZEP holders but rather conferred them.
This argument also centred around whether the court challenge was premature as the extension granted has yet to expire.
Jamie conceded Motsoaledi did not decide to create another exemption and said this was not a legal decision but a policy one.
He reiterated there was no legal obligation to create the blanket exemption in the first place, nor the exemptions that followed, and ultimately ended with the ZEP, which was set to expire at the end of 2021.
The foundation took the matter to court, seeking a declaration of invalidity and that Motsoaledi’s decision be reviewed and set aside.