Zimbabweans in South Africa can breathe a sigh of relief after the Pretoria High Court declared that the termination of Zimbabwean Exemption Permits (ZEPs) was unlawful, unconstitutional, invalid and extended the permits validity until June 30, 2024.
On June 28, 2023, a full bench of three judges, Collen Colins, Gcina Malindi, and Mandlenkosi Motha, directed South African Home Affairs minister, Dr Aaron Motsoaledi to reconsider the issue and conduct a fair process that complies with the requirements of Sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
Pending the outcome of this process and coming up with the Home Affairs Ministry’s decision within 12 months, the High Court judges declared that permits will remain valid for another 12 months.
“ZEP-holders will continue to enjoy the protections afforded by Immigration Directive 1 of 2021, namely: ‘No holder of the exemption may be arrested, ordered to depart or be detained for purposes of deportation in terms of the Section 34 of the Immigration Act for any reason related to him or her not having any valid exemption certificate (that is permit label or sticker) in his or her passport,’” read the judgement.
“’The holder of the exemption permit may not be dealt with in terms of Sections 29, 30 and 32 of the Immigration Act.’”
The case was brought forward by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa after the Home Affairs Minister announced the end of ZEPs in 2021.
Subsequently the minister granted further extensions but remained adamant that the 178 000 permit holders must either apply for other visas, if they qualified for them, or return “home”.
The court also ruled that ZEP holders may be allowed to enter into South Africa in terms of the Section 9 of the Immigration Act, read together with the Immigration Regulations, 2014, provided that they comply with all other requirements for entry and departure, except or not having a valid permit indicated in their passports.
“No holder of exemption should be required to produce, ‘ a valid exemption certificate, an authorisation letter to remain in the republic contemplated in Section 32(2) of the Immigration Act when making an application for any category of the visas, including temporary residence visa.’’”
The Minister of Home Affairs and any other parties opposing this application are directed to pay costs, jointly and severally, the one paying the other to be absolved, including the cost of two counsel where so employed.
The judges said the minister’s failure to consult, rendered the decision to terminate the programme procedurally unfair and irrational.
They said no attempt was made to assess the impact on ZEP holders and their children.
“As a decision of this consequence impacts over 178 000 permit holders, it would have required proper information on who would be affected, to what degree and what measures were in place to ameliorate this impact. It further requires a careful assessment of the current conditions in Zimbabwe,” read the judgement.
“Before this court, there is simply no admissible evidence from the Minister on whether he took these considerations into account and how.”
Also read related article: https://cite.org.zw/for-whom-the-bell-tolls-end-of-permits-to-affect-more-than-zep-holders/
