SA: Court thwarts Minister’s new bid to appeal judgment on Zimbabwean Exemption Permits

By Daily Maverick

SOUTH AFRICA: Home Affairs Minister Aaron Motsoaledi’s crusade against the Zimbabwean Exemption Permit (ZEP) programme has hit a snag.

A full bench of the Pretoria division of the High Court has refused to hear his ministry’s application for leave to appeal against an earlier judgment overturning his “executive” decision to terminate the programme, which means that ZEP holders retain the right to live and work in South Africa, at least for the next 12 months.

Essentially, the high court said the minister must return to the drawing board and carry out proper consultation.

While that process is under way, ZEP holders are protected for a year.

The matter stems from the Pretoria High Court’s ruling on 28 June, in which a Full Bench declared the termination of the ZEP programme to be unlawful, unconstitutional and invalid, and directed the minister to reconsider the issue “following a fair process” that complies with the relevant laws.

Repeated attempts

Motsoaledi’s department has repeatedly attempted to terminate the ZEP programme, only to issue last-minute extensions.

On 2 September 2022, when Motsoaledi announced his department would terminate the ZEP programme for good and refuse any further exemptions, the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa (CoRMSA) took the matter to court, on behalf of more than 178,000 holders of ZEPs, which were due to expire on 30 June 2023.

The CoRMSA team was led by Laura Macfarlane and Whyte from Norton Rose Fulbright as well as David Simonsz from the Cape Bar.

The applicants stressed that they were not attempting to prevent the minister from terminating the ZEP programme, but rather that his decision should not be unconstitutional; and that it must embark on fair process, with due consultation with affected parties and for clear reasons which demonstrate good cause for the decision made.

While the minister ended up extending the “grace period” by a further six months, (until 30 June 2023), the applicants argued that his decision to end the ZEP programme remained unchanged.

The ZEP programme has, for the past 14 years, allowed qualifying Zimbabwe nationals to live, work and study in South Africa.

Ministry’s arguments

The minister’s decision to terminate the ZEP programme, the applicants asserted, was taken without any prior notice given to or consultation with the affected ZEP holders, interested non-government organisations and the public; and ZEP holders’ representatives were invited to make representations only in January 2022 — after the minister had announced his decision.

The minister applied for leave to appeal on 13 July, arguing:

1. His decision was not reviewable under the Promotion of Administrative Justice Act;
2. He gave reasons for the 12-month extension of the ZEP;
3. The affected ZEP holders and several NGOs were given an opportunity to be heard, albeit after the decision was made;
4. The decision did not require public participation;
5. His executive decision was immune from sections 3 and 4 of the Promotion of Administrative Justice Act;
6. Procedural fairness did not depend on being given a meaningful opportunity to make representations before or after the decision as long as such an opportunity was given to have that decision changed or modified; and
7. He was cognisant of the impact that the decision would have on ZEP holders and the rights of children.

Foundation’s Challenge

Motsoaledi has repeatedly made it clear that he will not reconsider his decision to terminate the ZEP programme, even though in court papers he acknowledged that the decision has profound consequences on ZEP holders, their children and broader society.

The Helen Suzman Foundation and CoRMSA challenged this on four grounds:

1. The decision was procedurally unfair and procedurally irrational because there had not been any prior consultation process with affected ZEP holders, civil society and the public at large;
2. It was a breach of the constitutional rights of ZEP holders and their children;
3. It was taken without any regard to the impact on ZEP holders; and
4. It reflected a material error of fact as to the present conditions in Zimbabwe.

Jason Whyte, an impact litigation attorney at Norton Rose Fulbright, acting for  CoRMSA, explained that in terms of further appeals, the minister did have the option of applying to the Supreme Court of Appeal, but such a petition was very seldom granted.

“Then, if the Supreme Court of Appeal rejects the application, there is a notional possibility of applying to the Constitutional Court for special leave to appeal, but the prospects there are extremely slim. I can’t foresee the minister succeeding there.”

Ultimately, the judgment means the minister has to go back to the drawing board and consult broadly with civil society and ZEP holders before making any further decisions on the permit and its beneficiaries.