Relief for ZEP holders in SA after appeal by Home Affairs minister refused

The High Court in Pretoria has refused to hear Home Affairs Minister Aaron Motsoaledi’s application for leave to appeal against a ruling overturning his ‘executive’ decision to terminate the Zimbabwe Exemption Permits (ZEP) programme.

The Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa (CoRMSA), in June this year, successfully challenged Motsoaledi’s decision and won.

Led by Laura Macfarlane and Whyte from Norton Rose Fulbright as well as David Simonsz from the Cape Bar, they won the case on behalf of more than 178,000 holders of ZEPs, whose permits were due to expire on 30 June 2023.

Motsoaledi then applied for leave to appeal on 13 July, arguing that his decision was not reviewable under the Promotion of Administrative Justice Act.

The Minister further pointed out that his decision did not require public participation.

Despite acknowledging in court papers that the decision had profound consequences on ZEP holders, their children and broader society, Motsoaledi frequently made it clear that he would not reconsider his decision to terminate the ZEP programme.

But the court dismissed his appeal essentially recommending the Minister to return to the drawing board and carry out proper consultation.

Accordingly, the Helen Suzman Foundation and CoRMSA challenged Motsoaledi saying his decision was “procedurally unfair and procedurally irrational because there had not been any prior consultation process with affected ZEP holders, civil society and the public at large.”

They also noted that the executive order was a breach of the constitutional rights of ZEP holders and their children.

The decision, according to the Helen Suzman Foundation and CoRMSA, reflected a material error of fact as to the present conditions in Zimbabwe.

While Motsoaledi is carrying out proper consultations, ZEP holders will be protected for a year.