Johnathan Paoli
The North Gauteng High Court has dismissed an application by the Minister of Home Affairs, Aaron Motsoaledi, to appeal its previous ruling that his decision to terminate the Zimbabwean Exemption Permit (ZEP) programme was unconstitutional.
In September last year, Motsoaledi announced the government’s decision to terminate the programme and refused to entertain any further exemptions.
The Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa went to court on behalf of the 178,000 holders of the permits to challenge Motsoaledi’s decision and, in June, the court found in their favour.
After the ruling, Motsoaledi appealed the decision, but a full bench of the court dismissed it with costs and ordered him to return to the drawing board and carry out proper consultation.
The ruling brings another year of protection for ZEP holders.
The legal team for the Consortium, led by David Simonsz, stressed that they were not attempting to prevent the minister from terminating the programme, but only to ensure that his decision was constitutionally valid and followed a fair process, with due consultation with the affected parties and clear, demonstrable reasons for the decision.
Simonsz argued that, over the past 14 years, the programme has allowed qualifying Zimbabwe nationals to live, work and study in South Africa and despite the minister’s previous decision to extend the grace period to June this year, the problematic nature of his decision remained.
He argued that Motsoaledi’s decision was taken without any prior notice nor consultation with the affected permit holders, NGOs or the public and that the permit holders’ representatives were only invited to make submissions in January this year, well after his decision to terminate the programme had already been taken.
Motsoaledi based his application for appeal on several factors, including that his decision was not reviewable under the Promotion of Administrative Justice Act (PAJA), and that his executive decision did not require public consultation.
In addition, the minister’s legal team said that procedural fairness was not confined to giving allowance for representation before or after a decision was made, as long as such an opportunity was given to challenge or modify it.
The minister claimed that his decision did take into account the impact it would have on the permit holders and the rights of children, but said that his decision was immune from sections 3 and 4 of PAJA, which calls for procedural fairness when it affects a person or the public.
Jason Whyte, an impact litigation attorney representing the Consortium, said the minister had the right to appeal to the Supreme Court of Appeal to overturn the ruling, but he did not expect the petition to be granted.
“Then, if the Supreme Court of Appeal rejects the application, there is a notional possibility of applying to the Constitutional Court for special leave to appeal, but the prospects there are extremely slim. I can’t foresee the minister succeeding there,” Whyte said.
Following the ruling, Motsoaledi is expected to reassess the ZEP matter and conduct more effective and adequate consultation in order to facilitate a more fair and open decision regarding the future of the permit holders, as specified in the Constitution.
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