SA court considers minister’s decision on Zimbabwe permits action

WAS the decision not to renew the Zimbabwean Exemption Permit (ZEP) an administrative or executive action or was it irrational, antithetical to the Constitution and procedurally unfair?

These are some of the questions that a full bench of the Gauteng High Court in Pretoria will seek to answer before delivering judgment in a case relating to the effective termination of the ZEP.

The Helen Suzman Foundation (HSF) is challenging the decision of Home Affairs minister Aaron Motsoaledi after he announced in December 2021 that the ZEP would not be renewed.

During the economic and political strife in Zimbabwe in 2008 and 2009, many of the country’s citizens fled to South Africa.

At the time, the South African government decided to create a blanket exemption so that Zimbabweans could get permits to live and work in the country legally.

The permits were effectively extended by creating another permit over the years, which has since become known as the ZEP.

More than 178 000 ZEP holders have been in South Africa for more than a decade. During the two-day hearing, the court heard that Motsoaledi had not terminated the ZEP but that the programme had expired by effluxion of time.

The minister decided not to renew or create another permit for ZEP holders, as had been done in the years before. The minister also extended the validity of the ZEPs to help holders organise their affairs.

Advocate Ismail Jamie, SC, for the minister and director-general of home affairs, said ZEP holders were given until June 2023 to regularise their stay in South Africa by applying for other visas or asking to be exempt from the expiration of the ZEP through a waiver. Jamie based a large part of his argument on it being a policy decision.

He explained that giving a blanket exemption to Zimbabwean nationals entering South Africa in the 2000s was a policy decision based on the issues in the neighbouring country at the time. Similarly, the decision not to create a further exemption was also policy, which he said was based on rational reasons, which included budgetary constraints, improvements in the conditions in Zimbabwe and a backlog in the asylum system.

He said such a policy decision was not up for judicial scrutiny and that only the policy’s implementation could be challenged in a court of law. However, he conceded that the decision still had to be rational and could not be antithetical to the Constitution.

The court heard that the government’s decision that the blanket exemption in the form of the ZEP was no longer appropriate had been a political policy decision and not an administrative one, and that, therefore, the Promotion of Administrative Justice Act (PAJA) did not apply. — IOL