The Helen Suzman Foundation (HSF) has gone to court to oppose a bid by Home Affairs Minister Aaron Motsoaledi to appeal against a ruling that he may not terminate the Zimbabwean Exemption Permit (ZEP) programme.

The Foundation has filed papers in the Constitutional Court opposing an application by the Minister for leave to appeal against a Pretoria high court ruling which found his decision to be unlawful and unconstitutional. The Foundation says the unlawfulness of Motsoaledi’s decision to stop the ZEP had been determined on undisputed “common cause” facts which simply cannot be appealed.

The main premise for the high court ruling was that the Minister had not consulted with the affected 178,000 permit holders prior to making the decision. The Minister had also not personally deposed to an affidavit in the matter.

The high court set aside the decision to stop the ZEP and sent the matter back to the Minister to make a fresh decision, following a fair, consultative process. It refused an application by the Minister for leave to appeal and the Supreme Court of Appeal recently dismissed his appeal on the grounds that it had no prospects of success.

The Minister has now turned to the Constitutional Court. Director-General Livhuwani Tommy Makhode, in his affidavit, said the high court should have found that the Minister had consulted, albeit after the fact, and had justified the limitation of ZEP holders’ rights, including by submitting that conditions in Zimbabwe had improved.

He said the high court order effectively meant that the Minister could never terminate the programme.

But Naseema Fakir, the acting executive director of the Helen Suzman Foundation, said in her affidavit that the Foundation had not requested the high court to find that the Minister could never stop the programme.

She said because termination of the programme would have profound consequences, “in order to be valid, it must follow a fair and procedurally rational consultation process, be consistent with fundamental constitutional rights and be based on lawful, rational and reasonable grounds”.

She said the Minister’s “abrupt decision” to terminate the programme had placed in jeopardy the lives and rights of the 178,000 Zimbabweans and their children who had been living, working, and studying in South Africa since 2009.

The high court’s ruling was “persuasive and comprehensive”, she said.

“The court made findings that are entirely dispositive [settle/end it] of this application to leave to appeal. First, on the common cause facts, the Minister decided to terminate the programme without any prior consultation with ZEP holders, civil society or the wider public.

“Second, he inexplicably failed to depose to any affidavit in the proceedings, meaning there was no admissible evidence before the court that the minister had applied his mind to the staggering impact that his decision would have on the rights of ZEP holders and the best interests of their children.

“The consequences of these two facts is that the decision was patently unlawful.

“Unless this court finds these common cause factual findings are wrong, the unlawfulness of the minister’s decision is undisputable.”

Fakir said in the high court the Foundation had described in detail the impact of the decision on ZEP holders and their children, who would be left undocumented due to the legal and practical barriers to securing alternative visas and permits.

The Foundation had put up supporting affidavits of ZEP holders and circulars issued by the department reflecting ongoing backlogs and delays in processing alternative visas and permits.

These facts had been met with bald denials and evasion from the Director-General who adopted a “slippery and entirely inconsistent stance”, she said.

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It was not open to dispute that the Minister had not consulted prior to making the decision, she said.

After making the decision, the Minister and his lawyers had “told the world” that his decision was final and not open to change and that he regarded the Foundation’s review application as “creating false hope”.

Nitpicking

“The Minister’s nitpicking at parts of the full court’s judgment does not establish real grounds of appeal or any reasonable prospects of success,” Fakir said.

The Consortium For Refugees and Migrants In South Africa (Cormsa) has also filed papers opposing the Minister’s application for leave to appeal. The Consortium raises similar grounds, arguing that the high water mark of the Minister’s case was that it mattered not that he did not consult prior to making the decision, as long as an opportunity was given after the decision “in order to have it changed or modified”.

“Even if this is correct (which is denied), the Minister has explicitly stated that he was not willing to change or modify his decision. The decision was hence either unfair under the Promotion of Administrative Justice Act (Paja) or irrational under the Constitution. These are the conclusions reached by the high court and there is no reasonable prospect that any other court would come to a different conclusion,” executive director Thifulufheli Sinthumule said in his affidavit.

Also, the Minister had extended the ZEP programme until 29 November 2025 so he could not now argue that he was constrained by the High Court’s ruling, Sinthumule said. DM

First published by GroundUp.