27 October 2023
A case that will affect the futures of nearly 180,000 Zimbabweans in South Africa is being decided in the Pretoria High Court. Archive photo: Ashraf Hendricks
The Helen Suzman Foundation (HSF) rushed to court this week in an attempt to secure an order to protect Zimbabwean Exemption Permit (ZEP) holders whose presence in South Africa, it said, was again under threat.
In June three judges of the Pretoria High Court declared the decision by the Minister of Home Affairs to terminate the permit programme to be unlawful, unconstitutional and invalid.
They ruled that the permits remain valid while the minister conducted a fair and rational inquiry into the impact of their termination.
This week’s litigation, before the same three judges, was necessary because the minister was intent on appealing the ruling, which meant it would be suspended. HSF wants an execution order that will protect ZEP holders, pending the outcome of the government’s appeals.
The minister has already failed in a bid to get permission for leave to appeal from the Pretoria Court and has now indicated that he will approach the Supreme Court of Appeal.
HSF Executive Director Nicole Fritz said the minister had twice refused to abide by the court’s ruling, pending the appeal process.
“It is in the face of such unyielding resistance to perhaps the law’s most basic demand — that affected parties are owed fair and rational process when their rights are adversely affected – that HSF sought the court’s intervention once more to relieve the excruciating uncertainty that the minister’s actions present to ZEP holders,” Fritz said.
“Without this application there is a risk of the June judgment being suspended. That would mean that the ZEPs expire in roughly two months from now.
“The future of permit holders and their children will depend on the possibility of the minister granting them further piecemeal extensions.”
The June ruling by Judges Colleen Collis, Gcina Malindi and Mandlenkosi Motha gave protection to the 178,000 permit holders for 12 months, pending a “fair process” that complies with relevant laws. But that will fall away if the judges don’t grant what is called an “execution order”. Without the execution order the ruling will have no force or effect while an appeal is pending.
The minister announced the end of the programme in September last year.
Subsequently he granted further extensions but remained adamant that the permit holders must either apply for other visas, if they qualified for them, or return “home”.
The judges, in their June ruling, said the minister had made no attempt to solicit representations from those affected before he took the decision.
The first call for representations had been done “after the fact” and was not a “genuine consultation”.
They said throughout the answering affidavit (deposed to by the director-general of the department) there was a “notable disdain for the value of public participation”.
The judges said the minister’s failure to consult, rendered the decision to terminate the programme procedurally unfair and irrational.
They said no attempt was made to assess the impact on ZEP holders and their children.
In papers before the court on Thursday, Fritz, in her affidavit, said, “We trusted the minister would respect the order. But he has made it quite clear in press statements that he refuses to accept it, labelling it as a dangerous precedent.”
Fritz said the ZEP permit holders would be deprived of their rights because any appeal process could take a year, if not longer.
“This application is necessary to avert a human catastrophe. It has been entirely necessitated by the minister’s refusal to respect this court’s judgments pending the outcome of the appeal process.”
Fritz said the minister had expressed contempt for the ruling, describing it in disrespectful and disdainful terms. As such he should be held personally liable for 50% of the costs of the urgent application.
Opposing the application, Home Affairs Director-General Livhuwani Makhode said the minister was “not closed” to issuing further directives regarding the permits, if circumstances dictated.
He said permit holders who had applied for waivers and other visas would be protected as long as their applications were pending.
He denied the minister was contemptuous of the judgment.
“The minister cannot be expected to abide by an order in circumstances in which he is aggrieved and, on proper legal advice, has decided to challenge it. His decision is in the public interest.”
Makhode said allegations of a human catastrophe were “imaginary”. The permit holders were aware that the ZEP regime was temporary.
He said there were no grounds for a personal cost order against the minister because “he has not acted in bad faith”.
Judgment was reserved.