ZEPs are still valid – court

The Supreme Court of Appeal (SCA) this week dismissed with costs an application by Home Affairs minister Aaron Motsoaledi to appeal against a judgment declaring the termination of the Zimbabwean Exemption Permit (ZEP) programme to be unlawful, unconstitutional and invalid.

In a ruling handed down this month, the High Court in Pretoria said the application for special leave to appeal was dismissed on the grounds that there was no reasonable prospect of success. There was also no other compelling reason why the appeal should be heard.

The Helen Suzman Foundation (HSF), the primary litigant in the matter, says this means the high court ruling remains valid, unless the matter is referred to the Constitutional Court.

“The ZEP permits are therefore valid and allow holders to continue living in South Africa on the same terms and conditions prior to its unlawful termination,” the HSF said.

In June last year, three judges in the Pretoria High Court directed the minister to reconsider the termination of the ZEP permit programme “following a fair process” that complies with the relevant laws.

Pending the outcome of that process, the judges ruled, the permits would remain valid for another 12 months (until the end of June 2024) and ZEP holders had protection from arrest and deportation.

The case was brought by the HSF and the Consortium for Refugees and Migrants in South Africa after Motsoaledi announced the end of the programme in 2021.

Subsequently, he granted further extensions but remained adamant that the 178 000 permit holders must either apply for other visas, if they qualified for them, or return “home”.

In their ruling, Judges Colleen Collis, Gcina Malindi and Mandlenkosi Motha (writing as the court) said the minister had made no attempt to solicit representations from those affected before he took the decision.

The first call for representations had been done “after the fact” and was not a “genuine consultation”. The invitation was “meaningless”, they wrote.