The department of home affairs will on Monday seek to challenge a court finding that the termination of government’s Zimbabwean exemption permit (ZEP) regime is unlawful.
A full bench of the Pretoria high court in June criticised the department and its minister, Aaron Motsoaledi, for not following proper procedure in terminating the regime, which allows more than 178,000 Zimbabweans to stay and work in South Africa. It extended the regime by 12 months to allow the minister to follow a fair process to end it.
Judges Colleen Collis, Mandlenkosi Motha and Gcina Malindi ruled the minister failed to notify or consult affected people properly, failed to consider children’s rights and did not present facts to back his claims. He was ordered to reconsider the matter using a fair process. The department was ordered to pay costs.
The department is seeking leave to appeal against the judgment before the same bench. It wants to argue its case in the Supreme Court of Appeal.
The regime was established in 2009 as a humanitarian gesture to let Zimbabweans who fled political and economic turmoil at home to stay and work in South Africa. The regime has since been extended twice. In November 2021 the cabinet announced there would be no more extensions. It gave holders a year’s grace to get an alternative immigration status.
However, this period was extended again, terminating in June this year. Motsoaledi refused to extend it further, citing budgetary constraints, improvements in Zimbabwe and the need to ease pressure on the asylum-seeker system.
Rights groups the Helen Suzman Foundation and the Consortium of Refugees and Migrants (Cormsa) successfully challenged the refusal in the Pretoria high court.
The foundation and Cormsa are opposing the department’s plea. The foundation said if the department gets its way, it will strip permit holders of their rights by year’s end. Holders will face arrest and deportation despite a court victory. Home affairs in its heads of argument said the permits were never withdrawn. Temporary permits were going to expire initially in December 2021 and the minister simply extended its validity. The court has no right to interfere with a "policy-laden" decision given to "the minister alone".
Home affairs also said the court failed to consider reasons given by the director-general in 2021 to do with the "limited success" the permits had on "easing pressure" on asylum systems.
The department received 6,000 representations, meaning it did consult properly, it argued. It also considered permit ZEP holders’ rights by not charging them to pay for extensions. The court erred by "substituting" the minister’s decision with its own decision. That amounted to "judicial overreach".
The foundation said the rights of 178,000 permit holders "are at stake, despite this court’s best efforts to protect their rights". It said it "trusted the minister would respect interim and temporary orders and the protective purpose for which they were granted". Instead, the minister "expressed disdain", the rights group said.
It said the department called for representations only after the minister decided not to extend the permits. There was also "not a shred of evidence" the minister considered the impact of his decision. The 6,000 representations the department claims were "never provided" despite the foundation’s requests.
The department did not provide documents showing what the minister considered when deciding. The minister did not depose an affidavit. The court was not given proper factual evidence on budget constraints.
The court substituted nothing, merely keeping the status quo pending the minister’s further decision, the foundation said. Cormsa made points similar to the foundation’s, saying the department must indicate what is wrong with the court order and not level "superficial criticisms". Both want the application for leave to appeal dismissed with costs.
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