“Where the exercise of public power will have a drastic effect on the rights, lives and livelihoods of any persons, it cannot rationally be made without affording the affected persons an opportunity to make representations.”

This was according to the Helen Suzman Foundation following the judgment by a Full Bench of the Pretoria High Court on Wednesday, which ordered Home Affairs Minister Aaron Motsoaledi to conduct a fair process in reconsidering the termination of the Zimbabwean Exemption Permit (ZEP) system.

The Pretoria High Court ruled that the Department of Home Affairs’ decision to terminate the ZEP system — which would have profound consequences on the lives of more than 178,000 ZEP holders who have lived and worked in South Africa for well over a decade — was “unlawful, unconstitutional and invalid”. 

Permit holders will now have another 12 months to remain in the country, without fear of reprisal or arrest, after the court ordered the department to conduct a proper public participation process as required by law, Daily Maverick reported. 

Read more in Daily Maverick: Scolding court judgment declares Zimbabwe permit termination unlawful, permits stay valid for another year

Read more in Daily Maverick: ‘Unjustified limitation of rights’ — court rules Zimbabwean Exemption Permits cancellation unconstitutional

In one form or another, permits for Zimbabweans choosing to live in South Africa have been in place for more than a decade.

In November 2021, the Cabinet announced that the ZEPs, which were due to expire in December 2021, would not be extended. Permit holders were given a 12-month grace period until the end of December 2022 to legalise their status in the country by other means. In September last year, Motsoaledi announced that the grace period would be extended until 30 June 2023. 

Importantly, the minister, the court found, had made the decision without fair and proper consultation. In the judgment handed down on Wednesday, the judges said the minister’s apparent failure to consult rendered the decision to terminate the ZEP programme “procedurally unfair and irrational”.

Since late 2021, the Department of Home Affairs and Motsoaledi have faced litigation from the Helen Suzman Foundation challenging the lawfulness of Motsoaledi’s decision to terminate the ZEP programme. 

The Consortium for Refugees and Migrants in South Africa (CoRMSA) joined the Helen Suzman Foundation as an intervening party.

The Helen Suzman Foundation and CoRMSA’s application was opposed by Motsoaledi, the department’s director-general and the All Truck Drivers’ Forum and Allied South Africa.

On Wednesday, the executive directors of the Helen Suzman Foundation and CoRMSA welcomed the decisive judgment. 

Zimbabwean nationals wait in long queues outside the Home Affairs offices in Rissik Street,Johannesburg, South Africa on 22 October 2010. (Photo: Gallo Images / Foto24  /Denvor de Wee)

“The judgment is of huge significance for the approximately 178,000 ZEP holders who have lived in South Africa perfectly legally for almost 15 years, finding that they are entitled to fair process, due consultation and clear reason, demonstrating good cause when decisions of calamitous moment are made regarding their lives and livelihoods,” the Helen Suzman Foundation said in a statement on Wednesday afternoon. 

Speaking to Daily Maverick, CoRMSA director Thifulufheli Sinthumule described the ruling as “a huge victory for ZEP holders”. 

“If we didn’t challenge the cancellation of this ZEP … what could’ve happened is that 178,000 ZEP-documented people were going to be rendered undocumented, which could’ve exposed them to exploitation like arrest, detention and deportation. Some could’ve lost their employment and children could’ve lost opportunities to continue their studies,” said Sinthumule. 

“This court decision means that [ZEP holders] would remain regularised and can continue with their daily lives without anxiety, up until such time that has been stipulated by the court,” he told Daily Maverick. 

Echoing Sinthumule’s comments, Helen Suzman Foundation director Nicole Fritz said: “If the termination had happened in the way that the minister had determined, so at the end of 2021, Zimbabwean nationals who have lived here legally now for nearly 15 years would’ve been put to a desperate choice. They would’ve either had to stay here illegally or they would’ve had to have returned to a country that is virtually unchanged from the country they fled.”

Sinthumule said the judgment shows that “no one is above the law” and government officials still have to follow due processes — in this case, proper consultation and public participation.

Sinthumule highlighted that this was not the first court blow Home Affairs had suffered this year. 

Read more in Daily Maverick on Hell Affairs here and here.

In February this year, the Scalabrini Centre won a significant victory against the Home Affairs minister in the Western Cape High Court, which declared sections of the Refugees Act unconstitutional.

[MEDIA STATEMENT] HSF’s media statement following the Gauteng North High Court judgement on the Zimbabwean Exemption Permit Case.
Click on the link to read our statement.https://t.co/SVpXJ1WNdQ

— Helen Suzman Foundation (@HelenSuzmanFdn) June 28, 2023

A soldier maintains order as hundreds of people gather at the gate of the border waiting to enter into South Africa following the announcement of the Zimbabwe lockdown. (Photo: Shiraaz Mohamed)

‘Landmark decision’ 

The head of advocacy at the non-profit Scalabrini Centre, James Chapman, described the judgment as “a landmark decision”. He said the minister’s decision to terminate the ZEP programme unlawfully would’ve had “far-reaching implications” on ZEP holders and South African society at large.

“A lot of Zimbabwean Exemption Permit holders play a really crucial role in society — they are the nurses, the teachers, the social workers — they are part of the core fabric of South African society.

“The uplifting, uprooting and removal of Zimbabwean Exemption Permit holders without any consultation or proper consideration was hugely problematic,” he told Daily Maverick. 

Judgment brings relief and justice to thousands of Zimbabwe Exemption Permit Holders. The court found that the decision made by the Minister of DHA to discontinue ZEPs was unlawful, unconstitutional, and invalid. All ZEP holders’ permits are extended until 28 June 2024. pic.twitter.com/iBZpnoAniG

— Scalabrini Centre (@ScalabriniCT) June 28, 2023

Chapman said there wasn’t even “the remotest inkling” by the department for an engagement with those parties who were to be affected by the termination. 

“There needed to be consultation, but there wasn’t any.

“This is a resounding victory and show of solidarity between a vulnerable migrant community — ZEP holders who are intricately integrated within South African society — and civil society organisations working hand in hand to bring about this crucial victory,” he added. DM