ZEP case ‘defective’, civil rights groups argue
Civil rights groups have filed papers at the Constitutional Court, opposing home affairs minister Aaron Motsoaledi’s last-ditch attempt to overturn a high court ruling concerning the deportation of 178,000 Zimbabwean exemption permit (ZEP) holders. The groups argued any appeal by the minister is “fatally defective”.
The Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants in SA (Cormsa) filed papers at the apex court arguing the department of home affairs’ appeal of a 2023 court order stood no chance.
Regardless of the outcome, the Constitutional Court’s decision will affect about 200,000 people — permit holders and their families — regarding their right to legally work and study in SA.
In 2023 a full bench of the high court in Pretoria ruled the government’s decision to terminate the special ZEP regime was unlawful. The full bench found the government had not consulted properly with ZEP holders or demonstrated it had considered the enormous impact ending the regime would have. These steps have to be done in a “procedurally fair” manner before the government can implement such decisions.
The same full bench refused home affairs leave to appeal, as did the Supreme Court of Appeal (SCA).
In papers filed at the apex court in early March, home affairs director-general Tommy Makhode said the full bench “relied on a new ground” when it dismissed the department’s appeal — that the minister had not himself deposed to an affidavit.
He also took issue with how the court characterised the government’s actions and dismissed home affairs’ evidence.
HSF acting executive director Naseema Fakir said in court papers that HSF “squarely raised” the issue of the minister not deposing to an affidavit early on. Makhode’s claim this was a “new ground” was “untrue”.
Regarding the effect on ZEP holders and their children’s rights, she argued that there was “no evidence” by home affairs to show the impact of ending the regime “was considered” by Motsoaledi. She again emphasised the lack of a sworn affidavit by the minister meant there “was no justification under oath”. As a result, the full bench “correctly found that there was simply no evidence that the minister applied his mind to this critical issue”.
The ZEP regime was started in 2009 as a humanitarian gesture to allow nearly 200,000 Zimbabweans who fled their country’s turmoil to stay and work in SA. Motsoaledi initially refused any extension beyond June 2023, citing budgetary constraints, an improvement in the situation in Zimbabwe and the need to ease the pressure on the asylum seeker system.
HSF and Cormsa successfully challenged his decision not to extend the regime before a full bench of the high court in June 2023. The court did not deny the minister’s right to terminate the extension but said it had to be done lawfully.
Pending the minister implementing a proper decision, existing ZEPs remain valid until November 2025.
Cormsa’s executive director, Thifulufheli Sinthumule, in separate papers also filed last week pointed out that the minister’s director-general “can make no claim on behalf of the minister at all”.
Sinthumule demonstrated how, in 2023, the Constitutional Court itself had slapped Motsoaledi and Makhode with personal costs orders, after Makhode made claims on behalf of Motsoaledi that the minister later said he knew nothing about.
This makes an affidavit directly from Motsoaledi “all the more inexplicable”. In that case, home affairs had failed to adhere to a 2017 Constitutional Court order to begin amendment of immigration legislation that still allowed for immediate arrest and detention of suspected illegal immigrants without due process.
Also in June 2023 the same full bench of the high court in Pretoria granted an urgent interim in favour of the Zimbabwe Immigration Federation (ZIF), ruling home affairs could not arrest or deport ZEP holders. ZIF was acting on behalf of thousands of Zimbabweans to prevent the then imminent deportation at the end of June 2023, as a result of Motsoaledi not extending the regime.
Home affairs sought leave to appeal from the SCA and, last week, was granted leave. In a statement, Motsoaledi said he “welcomes the decision” and planned to supplement his argument in the apex court.
No date has been set for either the SCA matter or the Constitutional Court. The apex court can also dismiss the matter without a full hearing which would mark the end of home affairs’ appeals.
HELEN SUZMAN FOUNDATION AND CORMSA SAY APPEAL OF A COURT ORDER OVER ZIMBABWEAN PERMIT HOLDERS STOOD NO CHANCE