SA ConCourt dismisses Motsoaledi ZEP appeal

The South African Constitutional Court dismissed an application by the Minister of Home Affairs, Aaron Motsoaledi, for leave to appeal a June 2023 Pretoria High Court judgment which ruled that the Zimbabwean Exemption Permit (ZEP) had been unlawfully terminated.

The High Court ruled that the termination was unlawful, unconstitutional, and invalid, extending the permits’ validity until June 30, 2024.

“The Constitutional Court has considered the application for leave to appeal. It has concluded that the application should be dismissed as it bears no reasonable prospects of success. The Court has decided not to award costs,” the Constitutional Court ruled on Tuesday.

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.

In a statement, the Helen Suzman Foundation welcomed the ruling.

“The Constitutional Court’s order affirms with finality that this most basic of legal duties binds the Minister, notwithstanding changes in office that may occur once a new government is formed, when deciding the ZEP’s future. It is a vital affirmation – for ZEP holders and South African citizens alike – that principles of fair hearing and rational government are indispensable to our constitutional democracy,” they said.

On June 28, 2023, a full bench of three judges, Collen Colins, Gcina Malindi, and Mandlenkosi Motha, directed 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 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 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 judgment.

“The holder of the exemption permit may not be dealt with in terms of Sections 29, 30, and 32 of the Immigration Act.”

Motsoaledi then approached the Supreme Court which dismissed the appeal because there was no reasonable prospect for success forcing him to turn to the Constitutional Court.

Subsequently, the minister granted further extensions to 29 November 2025 but remained adamant that the 178,000 permit holders must either apply for other visas, if they qualified, or return “home.”

“The affected Zimbabwean Nationals will be entitled to apply for new permits under the following terms and conditions: A holder of the exemption permit will be entitled to work, seek employment and conduct business in the Republic of South Africa during that period of exemption,” he said. 

“A holder of the exemption permit due to expire on the 31st of December 2023 or June 2024, and such extended period of validity will be entitled to apply for a new permit. Exemption permit issues will expire on the 29th of November 2025.” 

Motsoaledi said a holder of the exemption permit will not be entitled to apply for permanent residence in terms of Sections 25, 26 and 27 of the Immigration Act 13 of 2002 or any other provisions in any other law, irrespective of their period of stay in the Republic of South Africa. 

In 2009, the South African government introduced a Dispensation of Zimbabwean Permit (DZP) to legalise the many Zimbabweans already inside the country because of the political and socio-economic situation in Zimbabwe.

In 2014, the DZP was renamed the Zimbabwe Special Permit (ZSP); and then in 2017 renamed the ZEP.

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