All Zimbabwe exemption permit holders knew the regime was temporary and could be revoked at any time by the minister who implemented it, William Mokhare, counsel for the department of home affairs and its minister, told a Pretoria court on Monday.
The SA government established the exemption regime as a humanitarian gesture to allow Zimbabweans who had fled their country’s political and economic turmoil to stay and work in SA. The regime has since been extended twice, and in November 2021 the cabinet announced there would be no more extensions. It gave holders a year’s grace to secure an alternative immigration status.
But this period was extended again until June 2023. Home affairs minister Aaron Motsoaledi refused to extend it further, citing budgetary constraints, an improved situation in Zimbabwe and the need to ease the pressure on the asylum seeker system.
Rights groups the Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants (Cormsa) successfully challenged this refusal in the Pretoria high court, with a full bench ruling that the minister failed to consult the 178,000 permit holders properly, failed to consider children’s rights and did not present factual evidence to back up his claims.
In his application to the full court in Pretoria for leave to appeal to the Supreme Court of Appeal (SCA), Mokhare said the conditions existing when the minister implemented and extended the regime are no longer prevalent. This means the basis for the regime no longer exists.
He said the minister has the power to implement and end the regime. The department’s initial refusal to extend the regime beyond June was a lawful “policy” decision, and the SCA will find this on appeal, he said.
On Monday, the HSF and Cormsa opposed the leave to appeal. The groups argued 178,000 people and their families face arrest and deportation on the regime’s termination because they would have no legal basis to be in SA. The minister must follow “a fair process”.
Responding to Mokhare’s arguments, advocate Carol Steinberg, representing the HSF, said there are zero prospects of success in the department’s case and that this would waste the SCA’s time. “People must be consulted before a government decision that affects them is implemented.”
She said it is “common cause” that the minister had not heard from permit holders before he made his decision — and this makes it unlawful.
Steinberg also noted there was no evidence from the minister himself in this case, as he had not deposed to any affidavit. Home affairs director-general Tommy Makhode swore the minister had done so, but the rights groups said this made the minister’s evidence hearsay.
Judge Mandlenkosi Motha also criticised Mokhare for the minister’s “conspicuous absence” from the high-profile matter. Mokhare said the director-general’s evidence, which was in an affidavit, was sufficient.
David Simonz, for Cormsa, noted that neither the HSF nor Cormsa said the regime could continue indefinitely. But the government must do the basics, including consulting permit holders about when it would end.
He noted the June judgment “is not the end of the road” for the department, as the decision was remitted back to the minister by the court anyway. An appeal would be a waste of everyone’s time.
Judgment was reserved.
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