The Department of Home Affairs (DHA) will launch an application for leave to appeal against two judgments related to the Zimbabwean Exemption Permit (ZEP).
In the first judgement, the North Gauteng High Court ruled that Minister Aaron Motsoaledi’s 2021 decision to terminate the long standing ZEP programme is “unlawful, unconstitutional and invalid” following a legal challenge of that decision by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa.
The court also ordered that the matter be referred back to the department for reconsideration “following a fair process” of public consultations and extended the validity of the ZEP by 12 months.
The DHA explained that Motsoaledi has taken legal advice on the matter and will challenge the decisions, as “they set a dangerous precedent”.
“The finding of the court on the applicability or otherwise of sections 3 and 4 of the Promotion of Administrative Justice Act (“PAJA”) is highly questionable, particularly the requirement for public participation when a decision of this nature is taken, affecting a specified category of persons only -- in this instance, the affected Zimbabwean nationals.
“The decision that the Minister took not to extend the Zimbabwean exemptions involves weighing of policy considerations, which falls within the domain of the Executive,” the DHA said.
Furthermore, the department alluded that the separation of powers may also be compromised by the judgment.
“The judgment also deals with matters relating to a sacrosanct principle of separation of powers. The Minister believes that this is another strong ground for appeal. The Minister believes that the decision he took was correct and took into consideration all the interests and rights implicated, including those of children,” the department said.
An interim interdict barring the arrest, detaining and deportation of ZEP holders was also handed down in a separate case involving the Zimbabwean Immigration Federation.
That decision will also be coming under legal challenge.
“It is not clear as to what is the purpose of interdict when in fact the Minister issued directives to ensure that the affected Zimbabwean nationals continue to enjoy the protections afforded by the directives. The last Minister’s Immigration Directive was issued on 7 June 2023.
“Since the Minister took the decision, no Zimbabwean national has been threatened in any manner whatsoever and/or deported. They continue to enjoy freedom of movement between South Africa and Zimbabwe and anywhere, as pleaded in the affidavits filed in court on behalf of the Minister showing significant movements to and from Zimbabwe by the affected Zimbabwean nationals and their families.
“Furthermore, many affected Zimbabwean nationals continue to apply for other visas and waivers in large numbers as provided for in the Immigration Act 13 of 2002,” the department said.
The DHA said the two judgments and orders will be placed under appeal “without any further delay”.
“The Minister would like to take this opportunity to assure the nation that he will do everything in his power to ensure that the Immigration Laws of the Republic of South Africa are enforced without fear or favour,” the department said. – SAnews.gov.za
