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Aaron Motsoaledi cries foul over Zimbabwean exemption permit ruling, applies for leave to appeal

Aaron Motsoaledi cries foul over Zimbabwean exemption permit ruling, applies for leave to appeal
Home Affairs Minister Aaron Motsoaledi. (Photo: EPA / Georg Hochmuth)

Over 178,000 Zimbabweans in South Africa have the special permit allowing them to live and work in the country. 

Minister of Home Affairs Aaron Motsoaledi has instructed his legal team to apply for leave to appeal court rulings which overturned his decision to terminate the Zimbabwean Exemption Permit (ZEP) programme.

Earlier this week, a full bench in the Pretoria high court, declared the termination of the programme unlawful, unconstitutional and invalid, and directed the minister to reconsider the issue “following a fair process” that complies with the relevant laws. The court challenge was brought by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa.

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

The judges ordered the extension of the programme — which affects about 178,000 Zimbabwean permit holders — for another 12 months.

In a separate, but related case, brought by the Zimbabwean Immigration Federation, the judges granted an interdict stopping any action being taken against ZEP holders, pending a review, still to be set down for hearing, of the Minister’s decision.

In the Helen Suzman ruling, the judges found that the Minister had not followed due process in considering the impact his decision will have on ZEP-holders and their children (born in South Africa) and had not considered the prevailing conditions in Zimbabwe.

He initially made no attempt to solicit representations and, when he did so belatedly, the process had not been meaningful. This rendered the decision procedurally unfair and irrational.

The judges said the decision was also an “unjustified” limitation of rights — and thus must be reviewed and set aside in terms of the Promotion of Administration of Justice Act (Paja).

Following these rulings, Motsoaledi, in a statement, said he “will do everything in his power to ensure that immigration laws are enforced without fear or favour”.

Motsoaledi said the two judgments could not go unchallenged because they set a dangerous precedent. He said the findings regarding the applicability of Paja were highly questionable “particularly the requirement for public participation when a decision of this nature is taken, affecting a specified category of persons only, in this instance Zimbabwean nationals”.

He said the decision not to extend the permit exemptions involved policy considerations which fell within the domain of the executive.

“The judgment also deals with matters relating to a sacrosanct principle of separation of powers. The minister believes that this is another strong ground for appeal. The minister believes that the decision he took was correct and took into consideration all the interests and rights implicated, including those of children,” the statement read.

On the interim interdict granted in the Zimbabwean Immigration Federation matter, Moatsaledi said the purpose of this was not clear because he had issued directives in June this year, to ensure that the affected Zimbabwean nationals would not be deported, threatened with deportation and could travel freely between South Africa and Zimbabwe.

Once all the court papers are filed, the three judges will have to decide whether or not to grant leave to appeal to the Supreme Court of Appeal.

Should leave not be granted, the minister can apply directly to the appeal court for permission to appeal. DM

First published by GroundUp.

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  • Fanie Rajesh Ngabiso says:

    The only foul thing here is Home Affairs. It abuses everyone, both foreign and domestic.

    At a simple level, the amount of time our population are forced to wait in queues because HA can’t even get the basics right is I believe an abuse of our human rights, and is certainly an abuse of our economy due to lost productivity.

    So, rather than defending the your very shaky position Mr Motsoaledi, focus on us, the people of South Africa – we pay your salary after all.

  • Beyond Fedup says:

    Well said Ricky. Serving the population efficiently and being aware that we, the taxpayer, pay their salaries and are beholden to us, are total alien and foreign concepts to these bumbling idiots in government. The arrogance and sense of entitlement is staggering. Let’s hope this slap down is upheld! Next step – then of course the Constitution must be changed as it is against anc misrule!

  • Peter Holmes says:

    Here we go again; more taxpayers’ money to fund what will probably prove to be a fruitless appeal.

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