The Helen Suzman Foundation (HSF) argued that home affairs minister Aaron Motsoaledi and his department were “using taxpayers money to try to subvert the will of the court”, and did not offer “a single cogent reason” to oppose a judgment that extended protections for 178,000 Zimbabwean exemption permit (ZEP) holders to June 2024, the High Court has heard.
In June, the Pretoria high court overturned the minister’s decision to end the permits that same month and in September dismissed home affairs’ leave to appeal.
The minister is now appealing directly to the Supreme Court of Appeal (SCA) but refused to give an undertaking to civil rights groups that ZEP holders’ rights would remain until 2024. He argued there was no threat of deportation.
Civil rights groups the HSF and the Consortium for Refugees and Migrants (Cormsa) sought to enforce the court’s June order to protect the 178,000 permit holders, as a result of the minister’s refusal to guarantee their rights.
The ZEP, established to help fleeing Zimbabweans from their country’s past crisis, has been extended a few times. June 2023 was going to be the cut-off, and Motsoaledi initially refused to extend it further, citing budgetary constraints and the need to ease the pressure on the asylum-seeker system.
Also in June, HSF and 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 to consider children’s rights.
After the case was argued but before judgment, Motsoaledi extended thepermits to December 31.
When judgment was handed down in June, home affairs indicated it would be seeking various appeals. Because appeals suspend the judgment being appealed, this would have meant the June victory for the 178,000 holders was under threat. HSF sought assurance from the minister the permit holders’ rights would, despite his appeals, be in place.
Home affairs refused to give such an undertaking.
HSF and CORMSA returned for a third time to the same on Thursday.
Advocate Carol Steinberg for HSF noted that so-called interim orders — in this case the one maintaining permit holders’ rights until June 2024 — are not automatically suspended when an appeal is lodged. In response, home affairs maintained this was not an interim order and was suspended while the minister appealed.
Steinberg argued before the same full court that wrote the judgment that the court was “at pains” to highlight the order was, in fact, interim. The judgment was not prejudicial to the minister, as he himself extended the regime and indicated he may even extend it further into 2024, she said.
Agreeing with Steinberg, advocate David Simonsz for Cormsa argued the “implications” for the 178,000 holders would be “devastating ” on their and their families’ lives. This was because of “the degree of uncertainty” caused by the minister, since employers, landlords and so on could all distrust that a permit holder was in SA legally, he said. He noted that the minister’s view influenced those of members of the public, especially those who were not lawyers or understood the judgment. He asked that the order be clearer and be one that can be used by any permit holder.
Advocate William Mokhare for home affairs said nowhere had the minister indicated that he would not comply. Motsoaledi was merely exercising his right to appeal. Mokhare also said either the matter was interim, in which case the matter should be dismissed, or it was final, in which case the minister’s appeal suspended the order anyway.
Acting judge Mandlenkosi Motha grilled Mokhare on why Motsoaledi was challenging the judgment that ordered him to extend the regime, when Motsoaledi was doing that anyway. “It’s mind-boggling”, Motha said. “Why appeal something you are already doing?”
Mokhare said the minister was allowed to exercise his rights to appeal.
Steinberg said there was “disrespect for the court” in home affairs’ stance, and if the minister were paying “out of his own pocket ... we wouldn’t be here”.
As a result she sought a personal cost against the minister, who she said was “using taxpayers money to try to subvert the will of the court”.
Judgment was reserved.
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