By Phenyo Selinda
The Constitutional Court has turned down outgoing Minister of Home Affairs, Aaron Motsoaledi’s request to appeal a judgment issued on 28 June 2023 by the Pretoria High Court. This ruling deemed Motsoaledi’s action to cancel Zimbabwean Exemption Permits (ZEP) as “invalid, unlawful, and unconstitutional.”
Key Findings of the Pretoria High Court
The Pretoria High Court determined that the Minister had neglected to consult adequately with ZEP holders and other stakeholders before making his decision in November 2021. Consequently, the court declared his action as “unlawful and unconstitutional.” The ZEPs were thus extended to remain valid until 28 June 2024 to ensure a fair public participation process could take place.
In an attempt to address the surge in visa and waiver applications from affected Zimbabwean nationals, Motsoaledi announced an extension of the ZEP deadline to 31 December 2023 on 8 June. This move was intended to provide ZEP holders with an opportunity to apply for alternative visas available under the Immigration Act.
Historical Context and Implications
The ZEP programme, established in 2009 under the Dispensation of Zimbabweans Project (DZP), has enabled tens of thousands of Zimbabwean nationals to live, work, and study in South Africa. In December, Motsoaledi’s department extended exemptions to over 178,000 Zimbabweans until 29 November 2025. During this period, they are allowed to work, seek employment, and conduct business. However, these permits are non-renewable and do not entitle holders to apply for permanent residence, regardless of their length of stay in South Africa. Constituents cannot be detained or deported due to the absence of a valid exemption certificate.
Legal Challenges and Constitutional Court’s Stand
The Helen Suzman Foundation (HSF) challenged Motsoaledi’s decision to terminate the ZEPs in April last year, and Wednesday’s statement from HSF underscores the significance of the Constitutional Court’s dismissal of his appeal.
“Yesterday (Tuesday), the Constitutional Court dismissed an application by the Minister of Home Affairs for leave to appeal a June 2023 Pretoria High Court judgment which held that the Zimbabwean Exemption Permit had been unlawfully terminated,” HSF stated.
“The June 2023 judgment was unequivocal in holding that the Minister is obliged to follow a fair consultation process, which duly considers the rights of those affected by terminating the ZEP before he is lawfully allowed to do so.”
The Constitutional Court has confirmed that this essential legal duty binds the Minister, regardless of changes in office when deciding the ZEP’s future. This affirmation is crucial for ZEP holders and South African citizens, underscoring the vital importance of fair hearing principles and rational governance in the country’s constitutional democracy.
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