- 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.
- Arguments were based on whether the decision was administrative or executive and if it was procedurally unfair and irrational.
These are some of the questions that a full bench of the Gauteng High Court in Pretoria will seek to answer before delivering judgment in a case relating to the effective termination of the ZEP.
The Helen Suzman Foundation (HSF) is challenging the decision of Home Affairs Minister Aaron Motsoaledi after he announced in December 2021 that the ZEP would not be renewed.
During the economic and political strife in Zimbabwe in 2008 and 2009, many of the country’s citizens fled to South Africa.
At the time, the South African government decided to create a blanket exemption so that Zimbabweans could get permits to live and work in the country legally.
The permits were effectively extended by creating another permit over the years, which has since become known as the ZEP. More than 178 000 ZEP holders have been in South Africa for more than a decade.
Policy decision
During the two-day hearing, the court heard that Motsoaledi had not terminated the ZEP but that the programme had expired by effluxion of time.
The minister decided not to renew or create another permit for ZEP holders, as had been done in the years before. The minister also extended the validity of the ZEPs to help holders organise their affairs.
Advocate Ismail Jamie, SC, for the minister and director-general of home affairs, said 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 through a waiver.
Jamie based a large part of his argument on it being a policy decision.
He explained that 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 not to create a further exemption was also policy, which he said was based on rational reasons, which included budgetary constraints, improvements in the conditions in Zimbabwe and a backlog in the asylum system.
He said such a policy decision was not up for judicial scrutiny and that only the policy’s implementation could be challenged in a court of law. However, he conceded that the decision still had to be rational and could not be antithetical to the Constitution.
The court heard that the government’s decision that the blanket exemption in the form of the ZEP was no longer appropriate had been a political policy decision and not an administrative one, and that, therefore, the Promotion of Administrative Justice Act (PAJA) did not apply.
The respondents also argued that the decision did not remove the rights of ZEP holders, but rather confirmed them, adding that the impact of the decision on holders was considered.
Procedurally unfair and irrational
Advocate Steven Budlender, SC, for HSF, argued that the minister’s decision was reviewable and should be set aside because it was procedurally unfair, irrational, was not made after consultation with the affected parties, and the impact on ZEP holders was not considered.
Budlender told the court there were no consultations or calls for representations by those affected before the decision was made.
The minister only called for representations after communicating his decision, but this did not get him out of the woods, according to Budlender. He said the call for representations was meaningless because it did not indicate the nature and purpose of the representations.
Budlender said:
Budlender also dismissed arguments that PAJA was not applicable, arguing that even if it was a policy decision, it had been translated into law, which was an administrative action.
In the event that PAJA did not apply, Budlender said the minister’s decision was still reviewable under the constitutional principle of legality, which included the requirements of substantive and procedural rationality.
Budlender said on the respondent’s version the principle of legality had been violated. This was because Motsoaledi said his decision was final and would not be reconsidered and that the call for representations was not made before the decision. And when the call was made, it did not relate to the decision to end the blanket exemption, Budlender added.
Budlender also maintained that the minister did not consider the impact of the decision on ZEP holders and their children.
“The inevitable effect of the minister’s decision is that, on 30 June 2023, tens of thousands of ZEP holders will be left undocumented. This is due to the legal and practical barriers to securing alternative visas and permits,” Budlender said.
While Ismail argued that it was considered, Budlender pointed out that there was no affidavit from the minister and, as such, no evidence of that consideration.
The All Truck Drivers’ Forum and Allied South Africa, another party to the proceedings, argued that the minister was not empowered to extend the permit programme in the first place.
Advocate David Mtsweni, for the truckers, also raised arguments that no exceptional circumstances existed which allowed the creation of the exemption regime in the first place. Mtsweni said the blanket exemption programme was only meant for foreign nationals who were in the country lawfully, which was not the case for ZEP holders.
HSF wants a declaration of invalidity and for Motsoaledi’s decision to be set aside. It also wants a temporary order directing that, pending the conclusion of a fair process, existing ZEPs should be deemed valid, and that ZEP holders should continue to enjoy the protections afforded by Immigration Directive 1 of 2021 and Directive 2 of 2022.
Judgment has been reserved.