SA High Court rules that termination of Zimbabwean Exemption Permit (ZEP) unlawful, unconstitutional and invalid

By News24.com

• Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit has been set aside. 
• The High Court has found that his decision was unlawful, invalid and unconstitutional. 
• The matter has been remitted back to the minister for reconsideration following a fair process.

Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP), which would affect more than 178 000 people living in South Africa, has been declared invalid, unlawful and unconstitutional by a full Bench of the Gauteng High Court in Pretoria.

In April, the High Court heard arguments in an application brought by the Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants in South Africa challenging Motsoaledi’s December 2021 decision not to renew the ZEP.

The decision not to renew the ZEP meant that permit holders, who either did not apply for an exemption or were not granted an exemption, would have to return to Zimbabwe after calling South Africa home for more than a decade.

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.

Finding that the minister’s decision to terminate the ZEP was unconstitutional, unlawful and invalid, the full Bench reviewed it and set it aside.

The court 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.

The full Bench also awarded costs to the applicants.

Decision taken behind closed doors

According to the full Bench, Motsoaledi was obligated to give the ZEP holders and other affected parties a reasonable opportunity to make representations as per the Promotion of Administrative Justice Act (PAJA).

Also, under PAJA, the minister was required to make a decision that was rational.

The court pointed out that on the evidence, Motsoaledi said there were internal discussions between him and affected units in the Department of Home Affairs (DHA) before he announced his decision.

The minister was silent on the participation of the ZEP holders.

“The minister not only failed to invite representations but also failed to consider any representations before taking the decision.”

The court found that Motsoaledi’s first call for representations was made after the fact; after he had communicated his decision.

It was also not a genuine consultation, the court found, looking at an engagement between a ZEP holder and the minister’s attorneys.

READ | Motsoaledi dragged in court for failing to give details for scrapping special Zim permits

“The invitation for representation after the decision had been taken by the minister, further runs counter to the very purpose of procedural fairness and procedural rationality, which are intended at ensuring that before a decision is taken an open mind is kept until a complete picture of the facts and circumstances bearing on a decision is placed before the decision maker.

“Here, the decision was taken behind closed doors without prior notification or consultation.”

Failed to consider impact on ZEP holders

On the totality of the evidence presented to the court, the full Bench also found that the minister had failed to consider the impact of his decision on ZEP holders and their children.

The HSF argued that Motsoaledi’s failure to consider the impact was also grounds for a review of his decision.

During arguments, the HSF asserted that the minister and DHA director-general (DG) had provided no evidence of the impact of the decision on the ZEP holders or whether Motsoaledi considered the impact before taking the decision.

The court agreed with this argument, also noting that Motsoaledi did not even depose an answering affidavit himself, but instead, the DG gave an affidavit to oppose the court challenge.

Assessing the available evidence, the court noted that the submissions from the DG were also silent on the impact the decision would have on ZEP holders and their children.

“The inescapable conclusion that must be drawn is that the minister failed to consider the impact of his decision on ZEP holders, their families and their children.

“Consequently, the minister’s decision must be reviewed and set aside on the grounds that he further failed to take into account relevant information under 6(2)(e)(iii) of PAJA.”

The court further found the decision to be unreasonable under PAJA.

Unjustified limitation of rights

The HSF argued that the decision by Motsoaledi would affect the rights of ZEP holders and the children, namely the right to dignity.

The court said the right would encompass the right to employment opportunities, access to health, education and protection from deportation.

It was also placed before the court that the termination of the ZEP would affect several established principles underpinning the best interests of children, which are guaranteed by the Constitution.

The DG denied that the decision breached the ZEP holders’ rights to dignity.

READ | Zimbabwe approves ‘draconian’ law targeting civil society

The court found that Motsoaledi failed to prove a justification based on facts which is rational between the limitation of rights on the one hand and a legitimate governmental purpose or policy on the other.

In the absence of evidence, the court found that the minister’s decision was an unjustified limitation of rights.

Huge significance

Responding to the judgment, HSF executive director Nicole Fritz said it was of huge significance to the ZEP holders who have lived in South Africa legally for almost 15 years.

“[The Bench found] that they are entitled to fair process, due consultation and clear reason, demonstrating good cause, when decisions of calamitous moments are made regarding their lives and livelihoods,” Fritz said.

“But the decision is also one of ordinariness, for on these issues our laws and Constitution have long been clear. Where the exercise of public power will have drastic effect on the rights, lives and livelihoods of any persons, it cannot rationally be made without affording the affected persons an opportunity to make representations.

“In its restatement of this fundamental principle of our law, the court upholds and safeguards the rights not only of ZEP holders but of every South African. The HSF welcomes today’s judgment.”

Meanwhile, the DHA said the minister was studying the judgment and taking legal advice and would, in due course, respond fully.