The Constitutional Court has dismissed home affairs’ latest attempt to overturn a high court judgment that found the government’s termination of the Zimbabwean Exemption Permit (ZEP) regime was unlawful.
The apex court ruled on Tuesday home affairs minister Aaron Motsoaledi’s appeal “bears no reasonable prospects of success”. The court did not award any costs.
The Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants in South Africa (Cormsa) successfully challenged Motsoaledi’s decision to terminate the ZEP regime obtained by a full bench judgment in 2023.
In 2023, a full bench of the high court in Pretoria ruled that the government’s decision to terminate the special ZEP regime was unlawful. It found that the government had not consulted properly with ZEP holders or demonstrated it had considered the effects of ending the regime. These steps should have been done in a “procedurally fair” manner.
The same full bench refused home affairs leave to appeal, as did the Supreme Court of Appeal (SCA).
The ZEP regime was established in 2009 as a humanitarian gesture to allow nearly 200,000 Zimbabweans who fled their country’s turmoil to stay and work in South Africa. Motsoaledi initially refused any extension beyond June 2023, citing budgetary constraints and other factors.
HSF and Cormsa successfully challenged his decision not to extend the regime before a full bench of the high court in June 2023. The court did not deny the minister’s right to terminate the extension, but said it had to be done lawfully.
As a result of the Constitutional Court’s refusal on Tuesday, and pending the minister implementing a proper decision, existing ZEPs remain valid until November 2025.
According to law firm Norton Rose Fullbright, which represented Cormsa in the high court, this is a “landmark decision”, benefiting 178,000 Zimbabwean nationals.
The HSF said the Constitutional Court’s dismissal “affirms with finality”, the minister’s duty “to follow a fair consultation process, which duly considers the rights of those affected by terminating the ZEP”. This “binds the minister, notwithstanding changes in office that may occur once a new government is formed when deciding the ZEP’s future”.
Neither Cormsa nor the HSF argued that the ZEP was immune from cancellation. Instead, they argued that should such a cancellation occur, the department and any minister in charge must follow a proper consultation process before making a decision.
The HSF said that the Constitutional Court’s dismissal “is a vital affirmation — for ZEP holders and South African citizens alike — that principles of fair hearing and rational government are indispensable to our constitutional democracy”.
Jason Whyte, a director at Norton Rose, said the apex court ruling meant that ZEP holders and their representative organisations “now have an opportunity to persuade home affairs that some form of permanency in South Africa should be considered”.
The ZEP remains effective until November 29 2025.
The ruling comes ahead of World Refugee Day on Thursday. According to the UN, this “is an international day designated by the UN to honour refugees around the globe. It ... shines a light on the rights, needs and dreams of those forced to flee.”
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