Johnathan Paoli
Home Affairs Director General Livhuwani Makhode has criticised the high court’s judgement and said that it “overemphasised the rights of children” when it overturned Minister Aaron Motsoaledi’s decision to scrap the Zimbabwean Exemption Permit (ZEP) programme in 2023.
The department filed papers on Thursday in the Constitutional Court in a bid to overturn the ruling.
In its ruling, the North Gauteng High Court found, among other things, that the termination of the ZEP programme affected “several established principles underpinning the best interests of a child”, and that the minister had failed to consider this.
Makhode said this was an error despite the court ultimately finding the Minister’s decision was “unreasonable”, pointing to the requirement for “an assessment of the ‘nature of the competing interest involved and the impact of the decision on the lives and well-being of those affected’.”
In the department’s application to the Constitutional Court, though, Makhode said that the rights of children do not trump all other fundamental rights and that the court incorrectly elevated the rights of children, above all other fundamental rights.
He said the High Court got it wrong and that its finding is simply not correct.
Makhode said that conditions in Zimbabwe had improved in order for a return and that the issue was still a “live controversy” and the department was currently constrained from taking any action against those ZEP holders whose applications for renewal or extension have been unsuccessful
“To date approximately 78,126 [of a total of 178,000 ZEP holders] have already applied for waivers and 10,427 have applied for other visas. The validity of their exemption permits has been duly extended; however, if their applications are unsuccessful, the order of the high court prevents the minister from exercising powers conferred upon him by the Act,” Makhode said.
The director said that among the other grounds the court failed to recognise was the doctrine of the separation of powers and that the court had incorrectly agreed with the Helen Suzman Foundation that the Minister ought to have consulted before the decision to terminate the programme was taken.
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