Home affairs minister Aaron Motsoaledi will challenge a Pretoria high court ruling that saw him lose an application relating to the Zimbabwe Exemption Permits (ZEPs).

The high court ruled on Monday that the department’s application for leave to appeal had no reasonable prospects of success.

This after the department’s director-general Tommy Makhode deposed to an affidavit five weeks ago challenging a judgement that had favoured the Helen Suzman Foundation and Consortium for Refugees and Migrants in SA.

According to SowetanLIVE’s sister publication TimesLIVE, Motsoaledi was appealing against the judgment that required him to go back to the drawing board on the ZEPs.

In a media statement issued on Tuesday evening, Motsoaledi’s spokesperson Thabo Mokgola said the minister was appealing the matter at the Supreme Court of Appeal.

“The minister has also taken legal advice on the judgment. The minister has decided to exhaust the legal remedies available to him. To this end, he has already instructed his legal representatives to lodge an application for leave to appeal to the SCA without any delay,” said Mokgola.

“Motsoaledi believes that the matter is of such great public importance to deserve the attention of a higher court.”

He said the minister was encouraged by the increased number of waiver and visa applications lodged by the affected Zimbabwean nationals. The minister is considering and approving an average of 2,000 waiver applications every week.

Mokgola said Motsoaledi would like to assure the public that the department will continue to enforce the immigration laws without fear or favour. 

He said that is why Motsoaledi hosted a two-day immigration workshop on October 16 and 17 at Birchwood Hotel, in Gauteng, attended by representatives from the National House of Traditional Leaders, Congress of Traditional Leaders of SA and National Khoi and San Council, among other stakeholders.

According to TimesLIVE, Monday`s ruling found that crucial to determining whether there were prospects for a successful appeal was the quality of the evidence before the court  on what the minister had taken into account when he made the decision to terminate the ZEP regime, which allows about 178,000 permit holders to lawfully be in SA.

However, Motsolaedi had not submitted an affidavit to court during the hearing, and instead, it had been the director-general of home affairs who had deposed to affidavits.

“What renders the minister’s application destined for failure is the minister’s failure to depose to an answering affidavit in the review proceedings. Only the minister, as the decisionmaker, could give evidence as to what passed through his mind,” said the court. 

The court also rejected the argument by the minister’s legal team that his decision was not subject to review under the Promotion of Administrative Justice Act (Paja) since it was not administrative in nature but was an executive decision and therefore only reviewable by a court if it was irrational in law.