11 April 2023
The decision by Minister of Home Affairs Aaron Motsoaledi to scrap the Zimbabwean Exemption Permit is being disputed in the Pretoria High Court this week. Archive photo: Ashraf Hendricks
The fate of more than 178,000 Zimbabwean Exemption Permit (ZEP) holders and their families is being decided this week in the Pretoria High Court as the 30 June 2023 deadline for the expiry of the permit system approaches.
The ZEP system was introduced in 2009 as a way of regularising the status of Zimbabweans fleeing to SA for political or economic reasons. It allows permit holders to live, work and study in SA.
Home Affairs Minister Aaron Motsoaledi suspended the ZEP system in November 2021, then extended it until December 2022, and extended it again to 30 June 2023. This was to give ZEP holders more time to apply for alternative permits, failing which they are at risk of deportation or voluntary repatriation to Zimbabwe. The case has aroused great interest among Zimbabweans, as the outcome could have huge impacts for the region should 178,000 permit holders be forced either to leave South Africa or qualify for alternative visas in South Africa – an unlikely possibility for most, given the high qualifications bar set by the Department of Home Affairs’ Critical Skills List.
Kicking off proceedings before a full bench of three judges in the Pretoria High Court on Tuesday, Advocate Steven Budlender, representing the Helen Suzman Foundation, argued that Motsoaledi’s decision to terminate the ZEP system was made without proper public consultation, and ZEP holders were not given prior notice.
“Today’s case is about 178,000 people that are here lawfully, under a scheme put in place by the government voluntarily. Any debates about whether our borders are too porous are irrelevant here,” he said.
“A lot has happened in 13 years (since the exemption permit system was put in place). People married, had children and started businesses. All of this was done lawfully. The effect of the decision is that virtually all of them will have to return to Zimbabwe. The minister himself acknowledges this will have impact on security, economy and so on. It’s a decision that will fundamentally change people’s lives, and it was a decision taken without consultation.”
No fewer than four cases related to the minister’s decision to terminate the ZEP system are on court rolls for hearing this week. In three of them, the Helen Suzman Foundation, Zimbabwe Immigration Federation and ZEP Holders Association (Zepha) are asking the court to set aside the minister’s decision as unlawful and invalid, and to return the decision to the minister for proper consideration in a fair and lawful manner.
The relief sought by Zepha goes a step further, arguing that ZEP holders are legitimately entitled to permanent residence in SA.
In a fourth case, brought by the All Truck Drivers Forum and Allied South Africa the court is asked to declare the entire ZEP system invalid. Advocate Matthews Mojapelo, representing the truckers, argued that the minister did not have the power to institute the permit system in the first place, nor to extend it. The All Truck Drivers Forum wants the ZEP system declared invalid, and ZEP holders to be given 12 months to either get alternative permits or leave the country.
Budlender argued that the law requires a minister to show compelling reasons for making a decision before consultation. He said there was no evidence the minister had an open mind in his belated request for public response to a decision that had already been made. “We have no affidavit from the minister saying he was open to persuasion. His public statements over the last 18 months are clear, that the decision to terminate the ZEP programme was final,” he said.
Budlender further argued the court should find in favour of the Helen Suzman Foundation in terms of the Promotion of Administrative Justice Act (PAJA), and even if that fails, the minister’s decision should be set aside on the grounds that it was procedurally irrational.
Citing further grounds to set aside the minister’s decision, Budlender pointed to the Constitution’s guarantees of the right to dignity and children’s rights. “The minister’s decision exposes children to risk of family separation. Many of them have only known South Africa as their home. The effect of this decision is that they must leave the country they call home.”
The Foundation wants the decision to be remitted to the minister for reconsideration in a way that complies with PAJA. Pending the outcome of that decision, it says, all existing ZEPs should be deemed to be valid, and ZEP holders should enjoy all the protections under the Immigration Act, namely: they cannot be arrested, deported or detained, and be allowed to freely enter and depart SA, provided they comply with all other requirements for entry and departure to the country.
David Simonsz, representing the Consortium for Refugees and Migrants in South Africa (CoRMSA), a non-profit organisation tasked with promoting and protecting refugee and migrant rights, said the minister’s decision was irrational and the reasons given were sometimes at odds with his own director-general, Livhuwani Makhode.
In an affidavit before the court, Makhode argues that it was at all times made clear to qualifying applicants that the exemption regime was temporary and would not entitle holders to permanent residence in the country. Makhode also disputes the Helen Suzman Foundation’s contention that any decision not to extend the ZEP system is irrational until the Zimbabwean economy improves. The Foundation has not explained what would constitute a sufficient improvement in the economic situation to justify a decision not to grant a further blanket exemption to ZEP holders, he says.
The case resumes on Wednesday, with legal representatives for the minister putting their arguments before the court.