Motsoaledi decision on ZEPs ‘was not irrational’

The government’s decision that there would no longer be blanket exemptions for previous holders of Zimbabwean exemption permits (ZEP) was a policy decision, not a legal one, says the state’s counsel, Ismail Jamie.

It was “an overtly political, policy-laden decision” and a court could intervene only in limited circumstances, he argued on Wednesday.

Jamie was outlining the government’s side on the second day of a court challenge by the Helen Suzman Foundation (HSF) and others regarding home affairs minister Aaron Motsoaledi’s decision to end the ZEP regime, now due to expire at the end of June.

The permits have allowed about 178,000 Zimbabweans to lawfully live in SA since 2009. These were first introduced in response to a political and economic crisis in Zimbabwe that caused an exodus into SA .

The regime was twice “extended”, in 2014 and 2017, for the original holders.

In November 2021 the cabinet announced the government would “no longer issue extensions to the Zimbabwean special dispensation” and gave holders a year’s “grace” to get their immigration statuses in order. This period was then extended for another six months.

Jamie told the court that the HSF fundamentally mischaracterised the decision. The minister did not decide to end the regime, he said. The permits were always temporary and due to expire in December 2021, “through the effluxion of time”.

The decision by Motsoaledi was that there would no longer be a blanket exemption category, but the exemptions would be kept in place for a period so individuals had time to regularise their statuses by applying for other visas or waivers.

There was no legal obligation to grant exemptions to Zimbabweans as a specific category, he said. When the permits were granted, “there might have been a moral reason. There might have been a political reason. There might have been any number of socioeconomic reasons”.

But it was not an administrative decision that required consultation before it was made, as argued by the HSF, Jamie said.

And while it was capable of judicial scrutiny, a court could intervene only if the government had acted irrationally in law: if there was no connection between the purpose (to end the blanket exemptions) and the means used to achieve it.

“Governments throughout the world can and must adopt policy,” Jamie said.

Jamie was responding to the HSF’s argument Tuesday that Motsoaledi did not consider the harmful effects of his decision to end the ZEP regime. The foundation’s lawyer Steven Budlender told the court that “on that basis alone his decision was unlawful”.

Jamie argued that just as the government was free to adopt a policy position regarding Zimbabweans, the government was “free to end it”.

He said the minister had not only applied his mind, but the department had set up bodies to gather more information. “This wasn’t just an off-the-cuff decision,” he told the court.

Jamie said the government had “carefully” considered implementation mechanisms, including engaging with Zimbabwe. It set up a body to assess visa applications. The minister took a further step by calling on people to apply for a waiver from the June cut-off.

Jamie argued this is as “far and away” from irrational and inconsiderate as a minister could be.

The government could not be asked to consider each of the current 178,000 holders of the permit and their dependents. Jamie stressed this would render government’s abilities impossible.

Further, regarding the applicants’ argument that the effect on ZEP’s end would affect various rights, including children, Jamie said this must be considered carefully by the court. Were the court to grant HSF’s order, he said, “the ZEP and similar regimes can never come to an end” because rights of children will always be affected. Any realisation of such rights would “vitiate” such regimes coming to an end.

In reply on Wednesday, Budlender said that the question was not whether the termination of the ZEP took away rights. In law, the question was whether “it affected rights”.

The debate was not about whether ZEP holders had a right to live here or right to an extension. If it affected rights, then people should be heard and be properly consulted. This did not occur, he said.

Budlender said the “critical event” was the decision to not extend the ZEP. The government saying it allowed for consultation of individuals missed the point, because no-one, including NGOs it later contacted, was consulted on the “critical event”.

The case continues on Thursday.