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Scolding court judgment declares Zimbabwe permit termination unlawful, permits stay valid for another year

Scolding court judgment declares Zimbabwe permit termination unlawful, permits stay valid for another year
Department of Home Affairs Minister Aaron Motsoaledi. (Photo: Leila Dougan)

The court has ruled that the Department of Home Affairs acted unconstitutionally in withdrawing the exemption permits to Zimbabweans.

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.” 

Read more in Daily Maverick: Battle over Zimbabwe permits set for high court in April

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. 

Read more in Daily Maverick: Our lives are on the verge of ruin, say Zim Exemption Permit holders as termination draws near

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. 

Read more in Daily Maverick: Government (again) defends controversial decision to scrap Zimbabwean permits

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.

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Comments - Please in order to comment.

  • Fanie Rajesh Ngabiso says:

    Is it really so hard for our government to stick to the rules?

    These continual court rulings should not be needed and waste money that could be used for building our country and benefiting the poor.

    If you do your job and do it according to the law Mr Motsoaledi then pictures of you will no doubt start to look a lot happier.

  • Bcawaypdf says:

    A proper and correct determination.

  • Adam Carnegie says:

    South Africa should be a destination that exemplifies transformation, inclusion and prosperity.
    Such potential trashed and in ruins…
    Political parties using Victim refugees to gain votes…
    It makes me furious.
    South Africa should have lifted it’s people out of poverty by now and we should be a showcase to these other floundering democracies – but no – we are floundering… And choosing to step on the necks of those fleeing their failed states.
    Absolute TRAGEDY! I am ashamed of these shocking leaders.

  • Alan Paterson says:

    And the likelihood that the “honorable” Minister will appeal this judgement? And then appeal the appeal? Seems to be the go-to thing for any found wanting minister, ex-minister, president and, of course our favourite ex-president. Stalingrad is the preferred option these days.

  • Dennis Bailey says:

    If this saga exemplifies ANC understanding of Human Rights, God help us. See also the Ukraine/ Russia neutrality discussion today. It seems deployed cadres with brain cells are in very short supply.

  • friendleigh2 says:

    Its all about voting fodder and popular rhetoric – the ANC as individuals and as a ruling party should be ashamed with themselves, but the wont, a complete lack of any moral compass.

  • William Stucke says:

    I asked the question elsewhere but didn’t get an answer (or didn’t see it, as DM doesn’t notify one about replies). My understanding is that the ZEP applies to nationals of _ALL_ SADC states. Is that correct? Can Malawians and Mozambiquans also apply?

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