Nowhere to go: Zimbabwean
special permit holders outside Home Affairs.
(Madelene Cronjé)
The Pretoria high court has set aside Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwe Exemption Permit (ZEP) programme as unconstitutional and procedurally unfair.
The court remitted the decision back to the minister, who was punished with costs, and ruled that pending his decision all existing ZEPs will remain valid for the next 12 months.
The court upheld three of the four grounds on which the Helen Suzman Foundation (HSF) challenged the minister’s decision and said it would therefore be superfluous to express a view on the fourth.
It said the application by the foundation concerned “matters of both of great importance and of striking ordinariness” as the termination of a programme in place for more than a decade would collapse the base on which some 178 000 permit holders had built their lives, their homes, their families and their careers in South Africa.
The foundation, supported by the Consortium for Refugees and Migrants in South Africa as an intervening party, argued that, first, the minister’s decision was procedurally unfair.
Second, it violated the constitutional rights of the permit holders and their children. Third, it was taken without regard to the ZEP holders, and last, it made a material error of fact as to the present situation in Zimbabwe, “that bears no reason or rational connection to the information before the minister”.
The reprieve was first introduced in 2009, as part of the Dispensation of Zimbabweans Project (DZP) and successive home affairs ministers have since deemed it an important gesture of solidarity and pan-Africanism.
In 2017, when the special permit was converted into the exemption permit, the government said it was mindful of its “political imperative to build peace and friendship in the continent”.
Such consideration ended under Motsoaledi, the foundation said in its pleadings, even though the stance adopted by his predecessors is written into the white paper on international migration. The policy document stresses that exemption permits enhanced national security, prevented migrants from being a drain on state resources and protected them from extortion.
“The white paper remains government policy and has not been withdrawn. Yet, the minister has now turned his face against this policy in deciding to terminate ZEPs,” advocate Steven Budlender SC, argued on behalf of the foundation.
The court noted that although Motsoaledi extended the “grace period” given to ZEP holders until the end of June, his decision to end it remains unchanged. Earlier this month, he announced a further six-month extension to December 2023, citing a wave of visa and waiver applications.
It was common cause, the court said, that the decision was taken without prior notice or consultation and that the minister only invited representations in January 2022, after his decision was announced.
The ruling recalled that the minister confirmed that the only input he received regarding the decision communicated in December 2021 to extend the ZEP for 12 months was given by home affairs officials. The applicants were therefore able to refute his claim that there had been an extensive progress to obtain comment from every affected ZEP holder and organisations representing the group as a whole.
“On the totality of the evidence presented before his court, the inescapable conclusion that must be drawn is that the minister failed to consider the impact of his decision on ZEP holders, their families and their children.
“Consequently, the minister’s decision must be reviewed and set aside on the grounds that he further failed to take into account relevant information under section 6(2)(e)(iii) of Promotion of Administrative Justice.”
The applicants argued that the decision infringed the constitutional right to dignity, which encompasses those to health, education and employment opportunities, as well as the rights of children of ZEP holders, who are protected under section 28(2) of the Constitution. The termination flew in the face of principles underpinning the interests of children, which were undermined by long periods of being undocumented.
The evidence fielded by the director general of an improvement in the situation in Zimbabwe was a minor uptick in GDP between 2021 and 2022 because of a bumper harvest year, after the economy had contracted the year before. The court noted that he also claimed that inflation had abated and unemployment had fallen to 5.2%. Both were false.
Headline inflation had, in fact, reached 256.9% in July 2022 and unemployment was officially at 19.1%.
In media statements communicating his decision, Motsoaledi had referred to budget constraints in his department, without giving detail of these, and said he had decided to prioritise services for South Africans.
The court faulted the minister for not taking it into his confidence and spelling out what these constraints were. Motsoaledi had moreover not deposed to an answering affidavit, leaving the court to rely on that of the director general of home affairs.
The director general contended that the situation in Zimbabwe had improved, that the termination of the ZEP programme would alleviate pressure on the asylum system and that budget constraints necessitated it.
Both he and the minister had a weighty duty to place factual evidence before the court to sustain these submissions.
The lack of factual evidence in this regard meant that Motsoaledi had failed the proportionality test in section 36 of the Constitution, the court said, noting that it demanded that the more profound the infringement, the more stringent the scrutiny in this regard must be.
“As a result, and in the absence of any transparency on the part of the respondents, in circumstances where the respondents have a duty to take this court into their confidence but have not, we must conclude that the minister failed to prove a justification based on facts which is rational between the limitation of rights on the one hand and a legitimate governmental purpose or policy on the other.”
Therefore his decision was invalid and must be set aside.
In a separate ruling on a second challenge to Motsoaledi’s decision, brought by Zimbabwean national Vinidren Magadzire and the Zimbabwe Immigration Federation, the high court granted the applicants an interdict restraining the home affairs department from arresting or deporting any ZEP holder on the basis that the exemption is no longer valid.
The order is valid pending judgment in the main part of their application, which echoes that brought by the foundation as they ask the court to declare the minister’s decision ultra vires. They argued that it was beyond his powers to withdraw rights or exemptions granted to Zimbabweans, save where he could show good cause for doing so.
The applicants further submitted that even if such a decision were within his powers, it had been the product of an irrational and unfair process where those who would be deeply affected had not been given an opportunity to voice their plight. Motsoaledi had failed to consider relevant factors and made several errors in law when he took the decision, they submitted.