The department of home affairs lost its final appeal opportunity to deport 178,000 Zimbabwean exemption permit (ZEP) holders after a Constitutional Court ruling found it did not adequately consult the permit holders.
Home affairs minister Aaron Motsoaledi must now adhere to a 2023 high court order to follow consultation processes with ZEP holders, which had not been adhered to. All appeal avenues are now closed to the department.
The apex court ruled on Tuesday that Motsoaledi’s appeal “bears no reasonable prospects of success”.
The Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants in SA (Cormsa) successfully challenged Motsoaledi’s decision to terminate the ZEP regime in 2023 when a full bench of the Pretoria high court ruled that the government’s decision to terminate the special ZEP regime was unlawful. It found the government had neither properly consulted with ZEP holders nor demonstrated that it had considered the effects of ending the regime. These steps should have be done in a “procedurally fair” manner.
The same full bench refused the department leave to appeal, as did the Supreme Court of Appeal.
The ZEP regime was established in 2009 as a humanitarian gesture to allow nearly 200,000 Zimbabweans who fled Zimbabwe’s turmoil to stay and work in SA.
Motsoaledi initially refused any extension beyond June 2023, citing budgetary constraints and other factors. But the HSF and Cormsa successfully challenged that decision.
As a result of the Constitutional Court’s refusal on Tuesday, existing ZEPs remain valid until November 2025.
According to law firm Norton Rose Fulbright, which represented Cormsa in the high court, this is a “landmark decision”.
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 in future 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 SA citizens alike — that principles of fair hearing and rational government are indispensable to our constitutional democracy”.
Jason Whyte, a director at Norton Rose Fulbright, 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 SA should be considered”.
The ruling comes days before 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.”
Update: June 19 2024
This story has been updated with more information.
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