Over 178,000 Zimbabweans in South Africa have the special permit allowing them to live and work in the country.  

Minister of Home Affairs Aaron Motsoaledi has instructed his legal team to apply for leave to appeal court rulings which overturned his decision to terminate the Zimbabwean Exemption Permit (ZEP) programme.

Earlier this week, a full bench in the Pretoria high court, declared the termination of the programme unlawful, unconstitutional and invalid, and directed the minister to reconsider the issue “following a fair process” that complies with the relevant laws. The court challenge was brought by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa.

The judges ordered the extension of the programme  which affects about 178,000 Zimbabwean permit holders  for another 12 months.

In a separate, but related case, brought by the Zimbabwean Immigration Federation, the judges granted an interdict stopping any action being taken against ZEP holders, pending a review, still to be set down for hearing, of the Minister’s decision.

In the Helen Suzman ruling, the judges found that the Minister had not followed due process in considering the impact his decision will have on ZEP-holders and their children (born in South Africa) and had not considered the prevailing conditions in Zimbabwe.

He initially made no attempt to solicit representations and, when he did so belatedly, the process had not been meaningful. This rendered the decision procedurally unfair and irrational.

The judges said the decision was also an “unjustified” limitation of rights and thus must be reviewed and set aside in terms of the Promotion of Administration of Justice Act (Paja).

Following these rulings, Motsoaledi, in a statement, said he “will do everything in his power to ensure that immigration laws are enforced without fear or favour”.

Motsoaledi said the two judgments could not go unchallenged because they set a dangerous precedent. He said the findings regarding the applicability of Paja were 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 Zimbabwean nationals”.

He said the decision not to extend the permit exemptions involved policy considerations which fell within the domain of the executive.

“The judgment also deals with matters relating to a sacrosanct principle of separation of powers. The minister believes that this is another strong ground for appeal. The minister believes that the decision he took was correct and took into consideration all the interests and rights implicated, including those of children,” the statement read.

On the interim interdict granted in the Zimbabwean Immigration Federation matter, Moatsaledi said the purpose of this was not clear because he had issued directives in June this year, to ensure that the affected Zimbabwean nationals would not be deported, threatened with deportation and could travel freely between South Africa and Zimbabwe.

Once all the court papers are filed, the three judges will have to decide whether or not to grant leave to appeal to the Supreme Court of Appeal.

Should leave not be granted, the minister can apply directly to the appeal court for permission to appeal.