Nowhere to go: Zimbabwean
special permit holders outside Home Affairs.
(Madelene Cronjé)
The Helen Suzman Foundation has applied to the Pretoria high court for an interim order enforcing its directive that the Zimbabwe Exemption Permit (ZEP) remain valid for a further 12 months, while Home Affairs Minister Aaron Motsoaledi seeks to overturn the ruling.
The minister’s application for leave to appeal would ordinarily suspend the implementation of the ruling and the temporary relief, but the foundation said this would allow the state to deport permit holders in a subversion of the court’s intention and trigger a humanitarian catastrophe.
The court in June held that the minister’s decision to terminate the ZEP programme was unconstitutional and procedurally unfair.
The permits, which have allowed tens of thousands of Zimbabweans to live and work in South Africa, would have expired at the end of June, when what had been termed a final six-month grace period came to an end.
The court remitted the decision back to Motsoaledi, and ordered that pending his decision all existing ZEPs will remain valid for the next 12 months.
The minister said the ruling set a “dangerous” precedent, and applied for leave to appeal. Shortly before the ruling was handed down, he extended the validity of the ZEP for six months, until the end of December, citing a wave of visa and waiver applications.
The foundation on Monday said it asked Motsoaledi to give an undertaking by 25 August that he would respect the court order, pending the appeal process.
“The minister has refused to provide this undertaking,” it said, adding that in a letter from his attorneys on 29 August, Motsoaledi declined to give a commitment to comply with the court’s order “now and in the future”.
“The effect of the minister’s position is that, by 31 December 2023, 178 000 ZEP-holders, their family members and children, face the risk of being stripped of their existing rights, being arrested, detained and deported despite this court’s judgment and order,” it said.
The foundation said this would ensue even if the high court denied Motsoaledi leave to appeal, as he may well petition the Supreme Court of Appeal, and if denied, approach the Constitutional Court.
These processes would only be concluded long after the end of December, when the grace period expires.
“Accordingly, this application is necessary to avert a human catastrophe which this court has explicitly sought to prevent.”
The foundation’s application is filed in terms of section 18 of the Superior Courts Act.
For it to succeed, the court must be satisfied that there are exceptional circumstances for interim enforcement, that those in whose interest the order is sought will suffer irreparable harm if it is not granted and that the respondents will not suffer such if it is.
The foundation argued that if the court order was suspended, ZEP holders stood to suffer irrevocable harm.
“Thousands of lives and livelihoods that have been nurtured and developed over many years will be decimated. The consequences will be irrevocable.”
It added that the court had recognised in its June ruling that the case was brought in exceptional circumstances.
The case concerned, the court said, “matters of both of great importance and of striking ordinariness” as the termination of a programme would collapse the base on which ZEP holders had built their lives, their homes, their families and their careers in South Africa.
It found that Motsoaledi’s decision was procedurally unfair, violated the constitutional rights of the permit holders and their children, and was taken without regard to the ZEP holders. Furthermore, the respondents 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 court said it was common cause 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.
It faulted him for not setting out what the budget constraints were that necessitated the government to terminate the special permit and for not giving factual evidence to substantiate his argument that circumstances in Zimbabwe had approved.
The director general of home affairs had submitted that there had been a minor uptick in Zimbabwe’s GDP between 2021 and 2022 because of a bumper harvest year.
The court noted that he also claimed that inflation had abated and unemployment had fallen to 5.2%. However, both of these claims were false. Headline inflation had reached 256.9% in July 2022 and unemployment was officially at 19.1%.
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, stressing that the more profound the infringement, the more stringent the scrutiny in this regard must be.
The foundation filed the application on Friday, and said within a day “shadowy organisation” began circulating misrepresentations of its approach to the court online.
“These deliberate misrepresentations are more than mischievous. They look to endanger the staff of HSF, all of whom are South African,” said Nicole Fritz, the executive director of HSF.
“Even more sinisterly, they provide vivid demonstration of what The Economist magazine this week called ‘paranoid nationalism’.”
The special reprieve for Zimbabweans was first introduced in 2009, as part of the Dispensation of Zimbabweans Project (DZP), as the neighbouring state descended into turmoil after then president Robert Mugabe refused to accept defeat at the polls. It was converted into an exemption permit in 2017.
In January 2022, when Motsoaledi confirmed that he approved a recommendation not to extend it further, he said it had always been intended as “a temporary measure, pending improvement of the political and economic situation in Zimbabwe”.
Last week, Zimbabwean President Emmerson Mnangagwa claimed victory in national elections, but opponents said he secured another five-year term thanks to intimidation and electoral abuses
by the ruling Zanu-PF.
The credibility of the elections was questioned by independent foreign observer missions, with that of the European Union saying voting took place in a climate of fear.
President Cyril Ramaphosa has congratulated the Zimbabwean government on the polls — noting the endorsement of African observer missions of the outcome — and attended Mnangagwa’s inauguration on Monday.