The government’s decision that there would no longer be blanket exemptions for previous holders of Zimbabwean exemption permits (ZEP) was a policy decision, not a legal one, says the state's counsel, Ismail Jamie SC.
It was “an overtly political, policy-laden decision” and a court could only intervene in limited circumstances, he argued on Wednesday.
Jamie was outlining the government's side on the second day of a court challenge by the Helen Suzman Foundation (HSF) and others regarding home affairs minister Aaron Motsoaledi's decision to end the ZEP regime, now due to expire at the end of June.
The permits have allowed about 78,000 Zimbabweans to lawfully live in South Africa since 2009.
Jamie argued that the HSF fundamentally mischaracterised the decision. The minister did not decide to end the regime, he said. The permits were always temporary and due to expire in December 2021, “through the effluxion of time”. The decision by Motsoaledi was that there would no longer be a blanket exemption category, but the exemptions would be kept in place for a period so individuals had time to regularise their statuses by applying for other visas or waivers.
The permits were first introduced in 2009 in response to a political and economic crisis in Zimbabwe that caused an exodus into South Africa. The regime was twice “extended”, in 2014 and 2017, for the original holders, said the HSF. But the government said it was always clear the permits were temporary.
In November 2021 the cabinet announced the government would “no longer issue extensions to the Zimbabwean special dispensation” and gave holders a year’s “grace” to get their immigration statuses in order. This period was then extended for another six months.
Jamie argued that when the government granted a blanket exemption category for Zimbabweans in 2014 and 2017, these were not extensions. They were new regimes for specific periods, which ended through the effluxion of time. Each time the government made a new policy decision.
There was no legal obligation to grant exemptions to Zimbabweans as a specific category, he said. When the permits were granted, “there might have been a moral reason. There might have been a political reason. There might have been any number of socioeconomic reasons.”
But it was not an administrative decision that required consultation before it was made, as argued by the HSF, said, Jamie. And while it was capable of judicial scrutiny, a court could only intervene if the government had acted irrationally in law: if there was no connection between the purpose (to end the blanket exemptions) and the means used to achieve it.
Even if the court thought there were better ways to achieve that purpose, that was not good enough for it to wade in, he said.
The means, or the implementation of the decision, was ongoing, he said. The government had given ZEP holders time to get their affairs in order and was considering people’s applications for other mainstream visas and waivers of requirements under the Immigration Act, he added. And though the government's decision to end blanket waivers was final, it had given people an opportunity to make representations on their circumstances.
There was no “sham” by the government in the implementation of its decision. Jamie referred to correspondence from the minister, which “repeatedly” referred to the department considering visa and waiver applications, he said.
But Steven Budlender SC, counsel for the HSF, said even in the limited circumstances that Jamie had conceded a court could intervene, the minister still had to consult those affected by his decision. And the minister had said he had not done so when he decided there would be no more blanket exemptions.
So on the minister’s “own version, it is absolutely clear that the principle of procedural rationality has been violated”, said Budlender.
On Thursday, the court will hear argument from the Zimbabwe Immigration Federation.
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