12 April 2023
The government is free to change the policy on the Zimbabwean Exemption Permit, lawyers for the Minister of Home Affairs have argued in court. Archive photo: Tariro Washinyira
The lapsing of the Zimbabwean Exemption Permit (ZEP) system was a political decision by the Minister of Home Affairs, and does not take away the rights of ZEP holders, the government has argued in court.
Advocate Ismail Jamie, counsel for the Minister of Home Affairs, told a full bench of the Pretoria High Court that there was no decision to terminate the ZEP system, as argued by the Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants in South Africa (CoRMSA) in a case that seeks to set aside the minister’s decision to terminate the ZEP system on 30 June 2023.
Rights that were temporarily conferred in the first place had been allowed to lapse through the passage of time, he said. No rights had been taken away.
“Just as government was free to adopt (a visa exemption) policy in respect of Zimbabweans as it relates to the conditions prevailing in that country in 2008 and 2009, it is free to change that policy in 2023,” says Jamie.
Blanket visa exemptions for Zimbabweans illegally in SA were introduced in 2009 under the Dispensation of Zimbabweans Project (DZP). That gave legal status to about 250,000 Zimbabweans who had fled political and economic instability at home. It allowed them to live, work, study and open businesses in SA. This scheme was extended and renamed the Zimbabwean Special Permit (ZSP) in 2014 and the ZEP in 2017. In 2021, Home Affairs Minister Aaron Motsoaledi announced that the ZEP system would not be renewed, though two temporary extensions were granted until 30 June 2023.
When asked by Justice Gcina Malindi on whether ZEP holders had a right to consultation on a matter that affected the rights they had acquired under the permit system, Jamie replied that consultation with ZEP holders will take place when ZEP holders apply for alternative visas or waivers.
“Practically, it is impossible to expect government to consult 180,000 ZEP holders, and to consider the personal circumstances of ZEP holders and their families. It would have taken years to assess impact on that level. That’s impractical and not required by law,” said Jamie.
In response, Advocate Steven Budlender, for the Helen Suzman Foundation, argued that there was no consultation with affected parties either before or after the decision to terminate the ZEP system. The minister’s claim that it was impractical to canvass 178,000 opinions as to how it would impact them was irrational, as this was standard procedure whenever legislation or policy is proposed by government, he said. “There was plenty of time to issue a notice of comment, yet this was not done in this case,” said Budlender. “All public power has to be rational and there must be a rational process.”
The court heard considerable debate as to whether the minister’s decision was subject to review in terms of the standard of procedural fairness under the Promotion of Administrative Justice Act (PAJA), or legal rationality. Jamie argued that PAJA did not apply, but that even if it did, the minister’s decision was procedurally fair in that ZEP holders were given 18 months to regularise their affairs. They were also given an opportunity to make representations to Home Affairs and apply for waivers or alternative visas.
Budlender disputed the claim made by counsel for the minister that this was a cabinet decision, saying it was the director-general of Home Affairs who made the decision. The minister had failed to consider the adverse impact of the decision on ZEP holders and their children. There was no affidavit from the minister explaining what steps he had taken to consider these impacts. “We sit here with no evidence that a single person has been granted a waiver. The minister has a duty of candour to this court,” said Budlender.
The Helen Suzman Foundation argued that it is not saying the exemption permit system can never come to an end, but that decisions that affect the rights of ZEP holders and their families must be properly considered. The minister’s decision limited the rights of ZEP holders since they would find themselves at risk of deportation, loss of jobs and closure of bank accounts after 30 June 2023.
David Simonsz, representing the Consortium for Refugees and Migrants in South Africa (CoRMSA), challenged the minister’s claim that there was no need to consult affected parties before making a decision as momentous as terminating the ZEP system. There was no consultation with those affected when the DZP was granted, or ended, nor were Zimbabweans consulted when the later programmes were introduced and ended. “The idea that at no point they had a right to be heard is wrong. When decisions are made that have an impact on you, you have a right to be heard,” said Simonsz.