Decision to terminate ZEP in SA ‘was procedurally unfair and irrational’

The Helen Suzman Foundation told the Gauteng High Court in Pretoria that Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) was procedurally unfair and irrational.

The organisation is seeking an order to declare the minister’s decision invalid and to have it set aside.

More than 178,000 ZEP holders are awaiting the outcome of their visa and waiver applications following the termination of the special program.

These Zimbabweans have about three months before their documentation to live and work in South Africa expires.

On Tuesday, Helen Suzman Foundation’s advocate, Steven Budlender SC, argued the minister’s treatment of the ZEP holders, through his decision to effectively terminate the permits, was procedurally unfair and irrational for two reasons.

Budlender accused Motsoaledi of terminating the ZEP programme without asking for representations from the public and the ZEP holders who would be affected. He only called for the representations after communicating his decision.

The other reason is the call for representations was also meaningless in the circumstances because it did not indicate the nature and purpose of the representations.

In addition, the call for consultation after communicating the decision appears moot as the minister repeatedly said he would not reconsider the decision to terminate the ZEP programme.

The lawyer said the minister’s decision was administrative and, as such, was beholden to the Promotion of Administrative Justice Act.

In the event the act did not apply, Budlender said, the minister was still bound by the requirements of legality and the Bill of Rights.

“As we argue in our heads and in what follows, procedural rationality under the principle of legality required that ZEP holders and the public be afforded a hearing.

“The foundation also argued that the decision was taken without the minister considering the impact it would have on the lives of ZEP holders, their children, and the broader public.

“The inevitable effect of the minister’s decision is that, on 30 June 2023, tens of thousands of ZEP holders will be left undocumented. This is due to the legal and practical barriers to securing alternative visas and permits,” Budlender said.

Meanwhile, the foundation is seeking a declaration of invalidity and Motsoaledi’s decision be reviewed and set aside, as well as a temporary order directing that.

The Department of Home Affairs last month extended the stay of long-term visa, waiver applicants until December 31st this year.

Initially, the Department had aimed to terminate permits on December 31, 2022, but instead granted an extension up to June 30, 2023.