On Thursday, 26 October 2023, the Pretoria High Court heard an application by the Helen Suzman Foundation (HSF) to enforce the court’s June 2023 order that found the home affairs minister’s decision to terminate the Zimbabwean Extension Permit (ZEP) and refusal to grant further extensions after 30 June 2023 was “invalid, unconstitutional and unlawful”.

The foundation argued that the ZEP remains valid while Minister Aaron Motsoaledi conducts a “fair and rational inquiry into the impact of its termination”.

Nicole Fritz, HSF executive director, said in a statement on Thursday that the court application was born of necessity. 

“When the minister first signalled his intention to appeal the court’s June 2023 judgment, HSF asked him to leave the ZEP in place until he exhausted the appeal process. The minister refused.”

Read more in Daily Maverick: Court thwarts Minister Motsoaledi’s bid to appeal judgment on Zimbabwean Exemption Permits

“When the court held, on 16 October 2023, that the minister’s appeal had no prospects of success, HSF asked that he now abide by the court’s June 2023 judgment. The minister again refused, instead indicating that he planned to continue his appeal by approaching the Supreme Court of Appeal (SCA),” said Fritz.

The ZEP was introduced in 2009 for those who fled to South Africa due to their home country’s economic and political strife. The programme allows more than 170,000 Zimbabweans to live and work in South Africa.

The Helen Suzman Foundation has made an application to enforce a court order that the Zimbabwean Exemption Permit remain valid while home affairs minister conducts a ‘fair and rational’ inquiry into the impact of its termination. (Photo: Tariro Washinyira)

‘Without fear or favour’

After the Pretoria High Court dismissed his application for leave to appeal the June ZEP judgment, Motsoaledi said he would enforce immigration laws without fear or favour.

“The minister has also taken legal advice on the judgment. The minister has decided to exhaust the legal remedies available to him. To this end, he has already instructed his legal representatives to apply for leave to appeal to the Supreme Court of Appeal without any delay,” read a Home Affairs statement. 

“The minister believes that the matter is of such great public importance to deserve the attention of a higher court.

“The minister is encouraged by the increased number of waiver and visa applications lodged by the affected Zimbabwean nationals. The minister is considering and approving an average of 2,000 waiver applications every week.

“The minister would like to assure the public that the Department of Home Affairs will continue to enforce the immigration laws without fear or favour,” it said.

‘Dangerous precedent’

Fritz said the issue relates to all South Africans because it can set a dangerous precedent in the implementation of the law.

“It is in the face of such unyielding resistance to perhaps the law’s most basic demand – that affected parties are owed fair and rational process when their rights are adversely affected – that HSF seeks the court’s intervention once more to relieve the excruciating uncertainty that the minister’s actions present to ZEP holders,” she said.

“Without this application, there is the risk of the court’s June 2023 judgment being suspended when the minister lodges his appeal at the Supreme Court of Appeal. That would mean that the ZEP expires roughly two months from now, on 31 December 2023.

“Without a court order providing certainty to ZEP holders, their future – and that of their children – will depend upon the possibility of the minister granting them further piecemeal extensions. Government decision-making of this sort – for ZEP holders and South Africans alike – has no place in a country of laws.” 

When Daily Maverick contacted the Department of Home Affairs on Friday it said the statement released last week still stands. DM