Court Mandates Fair Process for Reconsideration
The Pretoria High Court, comprising of three judges, has ruled that the termination of the Zimbabwean Exemption Permit program by the Department of Home Affairs is unlawful. The court has directed the minister to review the matter.
ZEP Holders Retain Valid Permits
During the review process, the permits of Zimbabwean Exemption Permit (ZEP) holders will remain valid for an additional 12 months, until the end of June 2024. This extension provides protection against arrest and deportation for ZEP holders.
Two Foundations File Legal Challenge
The Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa have brought a legal case for the termination of the program. This challenge follows the minister’s announcement in 2021 regarding the discontinuation of the ZEP.
Despite granting extensions, the minister has remained steadfast in his stance that the 178 000 permit holders must either apply for alternative visas if eligible or return to their country of origin.
Lack of Consultation Deemed Procedurally Unfair
In the highly anticipated ruling, Judges Colleen Collis, Gcina Malindi, and Mandlenkosi Motha, collectively as the court, stated that the minister did not make any effort to seek input from affected individuals before making the decision.
The judges observed a notable disregard for the value of public participation throughout the answering affidavit provided by the department’s director-general. They found that the lack of consultation rendered the termination decision procedurally unfair and irrational, and that no assessment was made regarding the impact on ZEP holders and their children.
Given the significant impact on over 178 000 permit holders, the judges highlighted the requirement for a careful evaluation of the current conditions in Zimbabwe. The court noted the minister’s silence on the impact on families and children in court documents and press statements, which contributed to the decision being reviewed and set aside.
Decision Constitutes Unjustified Limitation of Rights
The minister failed to provide any factual evidence demonstrating consultation on conditions in Zimbabwe. The judges determined that the decision represented an “unjustified” infringement of rights, requiring its review and nullification under the Promotion of Administration of Justice Act (PAJA).
Order Maintains Status Quo and Imposes Costs on Minister
The court’s order preserves the current situation until a fair process is concluded and the minister makes a new decision. Additionally, the minister has been instructed to bear the costs associated with the application.
Written by Simon Carletti, PR and Creative Supervisor
