The department of home affairs has appealed to the Constitutional Court to overturn a high court ruling compelling the department to halt the deportation of as many as 178,000 holders of Zimbabwean exemption permits (ZEPs).
Minister Aaron Motsoaledi argued that the full bench of the Pretoria high court used “incorrect legal principles” in reaching its findings last year, which include that the entire permit regime be reconsidered.
Regardless of the outcome, the Constitutional Court’s decision will effect about 200,000 people — permit holders and their families — regarding their right to legally work and study in SA.
In papers to the apex court, home affairs director-general Tommy Makhode said the full bench of the lower court “relied on a new ground” in dismissing the department’s appeal — that the minister hadn’t himself deposed to an affidavit with the high court.
Makhode also argued the court was wrong to find “factual evidence was absent” due to the minister not making submissions. His own evidence, made under oath, sufficed, Makhode said.
Makhode also said the court hadn’t taken into account arguments raised concerning the separation of powers, adding that the court’s emphasis on the impact on permit holders would “by necessary implication” mean “their status could never be revoked” since any end to the regime “would always have ... a negative impact”.
The court also “over-emphasised the rights of the children”, to the detriment of other rights, he said.
The Constitutional Court has yet to indicate if and when it will hear the matter.
Last year, a full bench of the Pretoria high court ruled that the government’s decision to terminate the special ZEP regime in 2023 was unlawful.
The 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 system was extended numerous times until cabinet announced in 2021 the system would be ended and gave holders a year’s “grace” to get their immigration status in order.
That was extended to June 2023, and Motsoaledi refused any further delay, citing budgetary constraints, an improvement in the situation in Zimbabwe and the need to ease the pressure on the asylum seeker system.
The Helen Suzman Foundation and the Consortium for Refugees and Migrants, challenged that decision in the Pretoria high court, arguing that the way the department went about ending the regime violated the rights of ZEP holders and their children.
The organisations were still preparing their responses to the department’s latest move and declined to comment.
In June 2023, a full bench of the high court agreed, finding that the minister didn’t properly notify ZEP holders about his decision; didn’t invite them to make representations, didn’t consider their individual circumstances or their children’s rights; and didn’t present factual evidence to justify his decision.
The court did not deny the minister’s right to terminate the extension, but said it had to be done lawfully. Pending the minister’s proper decision, existing ZEPs remain valid until June 2024.
The department sought leave to appeal to the Supreme Court of Appeal (SCA), which was denied by the same bench in October.
The court said because Motsoaledi himself hadn’t submitted an affidavit, it could not interrogate what he had in mind when making his decision. Only Makhode had deposed affidavits.
“Only the minister, as the decisionmaker could give evidence as to what passed through his mind,” the court said in its October judgment.
Aggrieved by the decision, home affairs then applied directly to the SCA. But, in February this year, the SCA, in a one paragraph order, dismissed the department’s petition because there were “no reasonable prospects of success”. That left only the Constitutional Court as the last avenue.
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