South Africa To Appeal Against Judgement On Zimbabwean Exemption Permit Holders
30 June 2023
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Home Affairs Minister Aaron Motsoaledi has announced that his office will apply for leave to appeal against two Zimbabwean Exemption Permit (ZEP) judgments handed down by a full Bench of the Gauteng High Court in Pretoria this week.

The full Bench found against Motsoaledi on two different judgments, both relating to the ZEP.

In the first, the court found that Motsoaledi’s decision to terminate the ZEP was invalid, unlawful and unconstitutional.

Since 2009, eligible Zimbabweans have been granted exemption permits allowing them to live and work in South Africa. This specific type of permit, now known as the ZEP, was introduced for those who fled to South Africa due to their home country’s economic and political strife.

The ZEP was due to expire in December 2021. Motsoaledi decided not to renew the permit, which affects more than 178 000 people, and extended the expiration deadline to the end of June 2023, which was later changed to December 2023.

The court found that the minister did not follow a fair process before making his decision, which should have included consultation with and an opportunity for ZEP holders to make representations.

READ | Motsoaledi’s decision to terminate ZEPs found to be unlawful, unconstitutional and invalid

The court also said Motsoaledi did not consider the impact his decision would have on the holders and that the decision was an unjustified limitation of rights on those affected.

The full Bench set the decision aside and ordered that the matter go back to Motsoaledi for reconsideration, following a fair process that complied with the requisite legislation.

The court also declared that, pending the process, the ZEP will be deemed to remain valid for the next 12 months.

News24 reported that in the second judgment, the court ordered Motsoaledi not to arrest or issue deportation orders for ZEP holders and that they be allowed to leave and return to South Africa.

Judgments can’t go unchallenged

In a statement on Thursday, Motsoaledi’s spokesperson Siya Qoza said the minister had carefully studied the first judgment and took legal advice.

“The two judgments cannot go unchallenged as they set a dangerous precedent,” Qoza said.

The statement said these precedents are the findings of the court on the applicability of certain sections of the Promotion of Administrative Justice Act (PAJA), which the Department of Home Affairs said was “highly questionable, particularly the requirement for public participation when a decision of this nature is taken, affecting a specified category of persons only. In this instance, the affected Zimbabwean nationals.”

It added: “The decision that the minister took not to extend the Zimbabwean exemptions involves weighing of policy considerations which falls within the domain of the executive.”

READ | High Court rules that ZEP holders can’t be arrested, deported

The minister also believes that judgment deals with matters relating to the separation of powers, which he believes is another “strong ground for appeal”.

On the second judgment, the department said Motsoaledi would challenge the outcome of the matter on the same basis as the first judgment.

“It is not clear as to what is the purpose of [the] interdict when in fact the minister issued directives to ensure that the affected Zimbabwean nationals continue to enjoy the protections afforded by the directives,” Qoza said.

“The last minister’s immigration directive was issued on 7 June 2023. Since the minister took the decision, no Zimbabwean national has been threatened in any manner whatsoever and/or deported.

“They continue to enjoy freedom of movement between South Africa and Zimbabwe and anywhere, as pleaded in the affidavits filed in court on behalf of the minister showing significant movements to and from Zimbabwe by the affected Zimbabwean nationals and their families.”

According to the statement, Motsoaledi has already instructed his legal team to launch an application for leave to appeal against both judgments.

“The minister would like to take this opportunity to assure the nation that he will do everything in his power to ensure that the immigration laws of the Republic of South Africa are enforced without fear or favour.”