Zimbabweans in South Africa have been granted some reprieve in their fight against mass deportations after the Pretoria High Court rejected an appeal made by the host country’s Minister of Home Affairs, Aaron Motsoaledi, to review the Zimbabwe Exemption Permits (ZEPs) system saying it had no ‘reasonable prospects for success.’
This development comes after Motsoaledi and the Director-General of the Department of Home Affairs, Livhuwani Tommy Makhode had argued in Pretoria’s Gauteng High Court that their government has no grounds for continuing to allow the ZEPs as that was a temporary solution.
Read: https://cite.org.zw/appeal-against-zeps-ruling-faces-misinformation-campaign/
However, some migrant activists fear that South Africa’s Home Affairs may proceed to appeal this loss at the Supreme Court due to his “hatred for foreigners, seen by the actions of the Home Affairs Department.”
Motsoaledi and Makhode were seeking permission to approach the Supreme Court of Appeal to overturn a previous judgment that declared the termination of the ZEP programme unlawful and unconstitutional.
However, on Monday, the High Court determined that the quality of the evidence — on what the minister had taken into account when he made the decision to terminate the ZEP system, which allows around 178 000 permit holders to legitimately remain in South Africa— was critical in evaluating if there were possibilities for a successful appeal and dismissed it with costs
The court said Motsoaledi had not submitted an affidavit, instead it had been the Director-General of Home Affairs who had deposed affidavits.
“What renders the minister’s application destined for failure is the minister’s failure to depose to an answering affidavit in the review proceedings. Only the minister, as the decision maker, could give evidence as to what passed through his mind,” the court said.
In an interview with CITE, the Chairperson of the Zimbabwe Community, Ngqabutho Nicholas Mabhena, said the latest court outcome was a “huge relief” to holders of ZEP in that, they still have time to submit their applications for other visas before June 28, 2024.
“People were worried about what was going to happen to them after December 31, 2023,” he said.
Mabhena, however, said Zimbabweans in South Africa still faced challenges in applying for waivers that would allow them to stay there definitely.
“The challenge we still face though is that there are delays in issuing waivers and visas for those who have applied,” said the chairperson.
African Diaspora Global Network leader, Dr Vusumuzi Sibanda said South Africa’s minister “has again failed” to appeal against the ZEP system “because he is an emotional individual trying to use his emotions to run the Home Affairs department.”
“His hatred for foreigners is seen in the manner in which Home Affairs has handled all applications since the time that (Motsoaledi) came in. No visas have been processed, no documents have been issued and he terminated the ZEP,” Dr Sibanda said.
“Unfortunately, even when (Motsoaledi) said he was going appeal this case, he actually blamed his lawyers for not knowing what they were doing. I wonder if he will blame these ones again because he’s an emotional individual who is interested in pushing his agenda using the Immigration Act as a gate for closing people out even if they qualify.”
Dr Sibanda claimed the South African Home Affairs minister might continue to challenge the High Court decision and petition the Supreme Court.
“We hope that Motsoaledi has a proper legal advice team that will tell him he can’t continue doing this, advise him ‘let’s leave it here’ because his excuse that this decision was an executive decision is very flawed. He doesn’t understand what an executive decision is because he acted in terms of legislation, which gave him that power which is Section 31 (2) of the Immigration Act and his powers were derived from that particular action.”
The migrant activist added that “therefore (Motsoaledi) will fail everywhere he goes because he did not follow procedures.”
The High Court also rejected the argument by the minister’s legal team that his decision was not subject to review under the Promotion of Administrative Justice Act (PAJA) since it was was an executive decision, and not administrative in nature, and therefore reviewable by a court only if it was irrational in law.
