Court grants ZEP holders another 12 months

The Pretoria High Court has ruled that the government’s decision to terminate the Zimbabwe Exemption Permit (ZEP) system, which allows 178 000 Zimbabweans to live and work in SA, was unlawful and unconstitutional.

The matter has been thrown back to the Minister of Home Affairs for reconsideration. A fresh decision must be made within 12 months and must follow a fair process in terms of the Promotion of Administrative Justice Act (Paja).

The Helen Suzman Foundation and the Consortium for Refugees and Migrants in SA (Cormsa) challenged the termination decision on several grounds, one of them being that the decision is unfair under Paja and should be reviewed. The court agreed.

Judgment was also handed down in a second case brought by the Zimbabwe Immigration Federation (ZIF) against the Ministers of Home affairs and Police, among others. In this case, the court interdicted the respondents from arresting, issuing an order for deportation, or detaining ZEP holders – who must be allowed to enter or depart SA provided all other entry and departure requirements are met.

A second request for relief by ZIF, seeking a review of the decision to terminate the ZEP system, must be heard within the next 12 months.

Long legal wrangle ahead

A spokesperson for ZIF told Moneyweb the second part of the case, seeking to review the minister’s termination decision and that provides protection for the roughly 1 000 ZEP holders (which has since grown to 100 000) who form part of the ZIF’s case, could take another three to fours years.

It also means the obligation on ZEP holders to apply for waivers no longer exists, says the spokesperson.

Helen Suzman Foundation executive director Nicole Fritz says Wednesday’s judgment makes it clear that what is at stake “are matters both of enormous consequence but also striking ordinariness.”

“The judgment is of huge significance for the approximately 178 000 ZEP holders who have lived in South Africa perfectly legally for almost 15 years, finding that they are entitled to fair process, due consultation and clear reason, demonstrating good cause, when decisions of calamitous moment are made regarding their lives and livelihoods,” Fritz said.

Read: Home Affairs in the dock over termination of ZEP system

“Today’s decision holds that the Minister of Home Affairs’ decision to terminate the ZEP is unlawful, unconstitutional and invalid. That decision is remitted back to the minister for fresh decision, following a fair process compliant with the requirements of administrative justice.

“But the decision is also one of ordinariness, for on these issues our laws and Constitution have long been clear,” she added.

“Where the exercise of public power will have drastic effect on the rights, lives and livelihoods of any persons, it cannot rationally be made without affording the affected persons an opportunity to make representations. In its restatement of this fundamental principle of our law, the court upholds and safeguards the rights not only of ZEP holders but of every South African. The HSF welcomes today’s judgment.”

Behind closed doors

In the cases brought by the Helen Suzman Foundation and Cormsa, the court found that the termination of the ZEP system, first announced in September 2021, was done behind closed doors and without public consultation.

In November 2021, cabinet decided not to renew the ZEP system but granted a 12-month extension to December 2022 – which was extended twice more to June and then December 2023. This was to give ZEP holders sufficient time to apply for alternative visas allowing them to live and work in SA.

Paja requires that the public must be given adequate notice and be allowed to make representations on such decisions. The minister of home affairs is obliged to make decisions that are rational. The court heard evidence that the general public “were not notified of the Minister’s intended decision nor were they afforded a meaningful opportunity to make representations before the Minister took his decision,” reads the judgment.

There were internal discussion in the Department of Home Affairs (DHA) but no mention was made of whether ZEP holders were invited to participate in the decision.

The ruling also found that comments by the director-general of Home Affairs, who claimed no decision had been taken not to grant further extensions to ZEP holders, fly in the face of press statements issued previously by the department.

State of economy

It was also claimed by Home Affairs that circumstances in Zimbabwe had improved since 2008, making it favourable for Zimbabweans to return. There were claims that inflation had improved and the unemployment rate was 19.1% in Zimbabwe – though no documents were presented to back this up.

The state also asserted that ZEP holders were invited to make representations to Home Affairs as to how the termination decision would affect them – though this was done after the fact and was therefore not a genuine consultation, says the ruling.

Read: SA visas may give ZEP holders the best chance of staying in SA

Throughout the director-general’s answering affidavit before the court, “there is a notable disdain for the value of public participation”.

“Indeed, it is presumed that ZEP holders are capable only of making representations on why the minister’s decision should not apply to them personally and not on the merits of the decision itself. While the view of civil society and the public are deemed unnecessary altogether.”

The minister’s decision was therefore procedurally unfair and irrational, says the ruling.

The Helen Suzman Foundation also challenged the minister’s decision for failing to consider the impact it would have on ZEP holders and their children. The court agreed with the Foundation on this point, deeming the minister’s decision unreasonable under Paja.

Constitutional rights

The termination decision was also found to infringe the Constitutional rights of ZEP holders and their children in terms of the right to dignity, which in turn encompasses the right to enjoyment of employment opportunities, access to health, education, and protection from deportation.

Read: Lecturers on exemption permits ‘let go’ by SA government

The ruling is at times damning of the director-general of Home Affairs, particularly when the evidence he presented to the court contradicted that of the minister or his own press office.

Judgment is still being awaited in yet another challenge brought by the ZEP Holders Association (Zepha) which is asking the court to allow ZEP holders to apply for permanent residence on the grounds that most of them have been here for more than a decade and built families, businesses and lives here.