Motsoaledi failed to apply his mind to ending Zimbabwe special permits,
court told
12 April 2023 | Business Live
Helen Suzman Foundation argues holders ‘abided by the law for 14 years and had built lives in SA’
Home affairs minister Aaron Motsoaledi did not consider the harmful effects of his decision to end the Zimbabwe exemption permit (ZEP) regime, the high court in Pretoria heard on Tuesday. On that basis alone his decision was unlawful, said Steven Budlender, counsel for the Helen Suzman Foundation (HSF).
The court was hearing three separate applications on the special permits, which had allowed about 178,000 Zimbabweans to lawfully live in SA since 2009.
The permits, due to expire at the end of June, were first introduced in response to a political and economic crisis in Zimbabwe that created an exodus to SA. The permit regime was twice extended — in 2014 and 2017 — but the government says it was always clear that the permits were temporary.
In November 2021, the cabinet announced that the government would “no longer issue extensions to the Zimbabwean special dispensation” and gave holders a year’s “grace” to get their immigration status in order. The year’s grace was then extended for another six months.
Budlender began his address to the court by saying the case is “not about illegal foreigners”. The holders of ZEPs are “here lawfully, pursuant to a programme put in place by the government”. They have abided by the law for 14 years, he said, and have built lives in SA.
The HSF challenged Motsoaledi’s decision on a number of grounds, including that there was no meaningful consultation with those affected before the decision was taken, and that the minister had not considered the effect of his decision on the holders of the permits and their children.
Budlender said by law a decision over the exemption permits was required to be taken by the minister: “The decision-maker in this case is the minister, not the director-general, not any other official.”
Yet Motsoaledi had not put any affidavit before the court in this case, he said. He had not even put in an affidavit confirming what the director-general had said. “He says nothing. That’s not a technical point, with respect. It’s a very serious one,” said Budlender.
But even if the court were to look past this, there is still no answer, he said. The minister should have had proper information before him on who would be affected, to what degree, and what measures were in place to ameliorate the harm.
“A decision of this import required the minister to apply his mind to its impact ... [It] required, at minimum, that the minister should have had proper information before him on who would be affected, to what degree, and what measures were in place to ameliorate the harm,” said Budlender.
When the director-general briefed the minister on what to do about the exemptions on September 20 2021, his submissions were “entirely silent” on the effect the decision would have on permit holders.
The minister had then simply approved the director-general’s submissions on the same day — according to a version of the director-general — “without any further interrogation”, said Budlender. A press statement by Motsoaledi that followed on January 7 2022 was again “entirely silent” on the impact, he said.
When asked by the HSF for the relevant documents and records, none was forthcoming, said Budlender. And though the director-general said in court papers that the impact “weighed heavily”, this was a “patently bald statement” and one for which there was no evidence, he said.
Counsel for the Consortium for Refugees and Migrants in SA, David Simonsz, said the reasons the government gave for ending the permits do not withstand scrutiny. He said the permits were introduced because of the dire situation in Zimbabwe, yet conditions there had not improved and the government had provided no evidence to the contrary.
Simonsz said if the government had come to court with credible research and reports that showed an improvement in Zimbabwe’s situation “and said ‘here’s my evidence’”, then the debate in court may have been a different one. But the government had simply not brought sufficient research into the facts.
Another reason given by the government for ending the ZEP permits was to save money, because resources at the department of home affairs had been constrained as a result of the Covid-19 pandemic, said Simonsz. But the ZEPs were introduced as a cost-saving mechanism to relieve the pressure on other immigration routes, such as the asylum system. The “true irrationality” was to drop a cost-saving mechanism to save costs, he said.
Counsel for the minister will argue the government’s side of the case on Wednesday.