The Pretoria high court has ruled that the government’s decision to terminate a special permit regime for Zimbabweans living and working in the country was unlawful and irrational and ordered that the permits remain valid for the next 12 months.
The Zimbabwean Exemption Permit (ZEP) regime was established in 2009 as a humanitarian gesture to allow nearly 200,000 Zimbabweans who fled their country’s political and economic turmoil to stay and work in SA. The regime was extended twice, in 2014, and 2017, for original holders.
However, in November 2021, the cabinet announced the government would not issue extensions and gave holders a year’s “grace” to get their immigration status in order. This period was extended for another six months, terminating in June 2023. Home affairs minister Aaron Motsoaledi refused to extend it any further, citing budgetary constraints, improvements in Zimbabwe and the need to ease the pressure on the asylum seeker system.
Two NGOs, the Helen Suzman Foundation and the Consortium for Refugees And Migrants, challenged Motsoaledi’s decision in the high court, arguing that it violated the rights of ZEP holders and their children. They said the minister did not consult them or consider the consequences of the decision, and failed to provide evidence to support his reasons for ending the regime.
Before judges Colleen Collis, Mandlenkosi Motha and Gcina Malindi of the Pretoria high court earlier this year, the NGOs argued that the minister did not notify ZEP holders properly of his termination decision, initially made in 2022. Home affairs said in court papers it “implemented” a process to hear from ZEP holders.
The court agreed with the NGOs and found the minister’s decision was arbitrary and irrational. The court said the minister did not notify ZEP holders properly about his decision, did not invite them to make representations, did not consider their individual circumstances or their children’s rights, and did not present factual evidence to justify his decision. The court criticised the department’s “notable disdain for the value of public participation”.
The court did not deny the minister’s right to terminate the extension, but said he had to do it in a lawful way. The court declared the decisions to terminate the regime and refuse to grant extensions as unlawful. The minister must reconsider the matter, complying with fair processes — such as allowing representations from affected persons. Pending the minister’s proper decision, existing ZEPs remain valid for 12 months.
Though home affairs earlier in June extended the grace period until the end of 2023, it is unclear when the 12 month validity period from the order will begin.
Home Affairs was ordered to pay costs.
At the time of writing, the parties are still studying the judgment.
Update: June 28 2023
This story has been updated with new information.
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