The high court in Pretoria has ruled the Department of Home Affairs’ decision to summarily withdraw the Zimbabwean Exemption Permit unlawful, unconstitutional and invalid. 

Permit holders will now have another 12 months to remain in South Africa without fear of reprisal or arrest as the court orders the department to conduct a proper public participation process as required by law. 

The high court said the department had not adhered to the requirements of the Promotion of Administrative Justice Act (Paja). Section 4(1) of the act says that where an administrative decision “materially and adversely affects the rights of the public” an administrator owes a duty of fairness to the public at large. This would include the administrator holding public hearings or obtaining written comments. 

“Our Constitutional Court held recently in e.tv (Pty) Limited vs Minister of Communications and Digital Technologies that, where a decision is ‘not a mechanical determination’ and ‘important interests are at stake, it is not procedurally rational to take a decision without notice to the affected parties to obtain their views on the matter.” 

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The Zimbabwean Exemption Permit (ZEP) first came into existence in 2009 and was extended several times by Home Affairs. In September 2021, the department decided to terminate the ZEP regime and announced that decision in November 2021. This was just a month before the expiry of the latest permits. The department announced that ZEP-holders would be given a 12-month grace period following the expiry of the document, but they were not given an opportunity to give input to the decision. Civil society groups were also not called on to comment. 

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The court said it found the department had a “notable disdain for the value of public participation”.

“Indeed, it is presumed that the ZEP holders are capable only of making representations on why the Minister’s decision should not apply to them personally and not on the merits of the decision itself.  While the views of civil society and the public are deemed unnecessary all together,” the court said. 

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The high court ordered that the ZEP holders should continue to have the protection of the permits for 12 months while the department conducts a “fair process”. Home Affairs Minister Aaron Motsoaledi should then make a revised decision that properly considers public inputs, in line with Paja. 

The department has been ordered to pay the legal fees in the case. 

Judge Gcina Malindi and acting judge Mlandenkosi Motha concurred with the judgment. DM

This is a developing story and may be updated. Watch out for more coverage in Daily Maverick.