Counsel for the Helen Suzman Foundation (HSF), Steven Budlender SC, this week began his argument in the high court on Zimbabwe exemption permits (ZEPs) by saying the case was not about “illegal foreigners”.
“There are lots of debates in our country about illegal immigration … That’s got nothing to do with today’s case. Today’s case is about 178,000 people who are here lawfully … pursuant to a programme put in place, voluntarily, by the government.”
They had been here lawfully for the past 13 years and had built lives in South Africa, he said.
The special permits were introduced in 2009 in response to a political and economic crisis in Zimbabwe that caused an exodus into South Africa. The exemption regime was twice extended for the original holders — in 2014 and 2017. But the government says it was always clear that the permits were temporary.
In November 2021, the government announced it would “no longer issue extensions to the Zimbabwean special dispensation” and gave holders a year to get their status in order. The year’s grace was then extended for another six months. As things stand, the permits are due to expire on June 30. The government’s court papers said ZEP holders "represent some 8.4% of the undocumented Zimbabwean nationals within the Republic". But for this group, the outcome of the case is crucial.
Counsel for the Zimbabwe Immigration Federation (ZIF), Tembeka Ngcukaitobi SC, said unless the court intervened, South Africa was “sleepwalking towards a human catastrophe of monumental proportions”. On July 1, permit holders would “overnight” be rendered illegal immigrants liable to arrest and forced deportation.
The government has argued that the HSF is seeking to establish a permanent right for the ZEP holders to remain in South Africa “through the back door”, but Budlender said it acknowledged that the minister had the power to end special exemptions.
However, the decision had to be taken lawfully, he said. In this case, the question was whether the minister could decide to end the ZEP regime without consulting those affected beforehand, without considering the impact of his decision and, when it limited people’s rights, without justifying those limitations under the constitution.
These were the HSF’s three main grounds for challenging the decision. The ZIF had additional grounds, including that home affairs minister Aaron Motsoaledi acted outside his legal powers when he made the decision.
It is absolutely clear that the principle of procedural rationality has been violated
— Steven Budlender SC
Ismail Jamie SC, for the government, argued that it was a policy decision, not a legal one. It was “an overtly political, policy-laden decision”, so a court could only intervene in limited circumstances.
He argued that the minister had not decided to end the permit regime. The permits were always temporary and due to expire “through the effluxion of time”. The decision by Motsoaledi was that there would no longer be a blanket exemption category, but the ZEP exemptions would be kept in place for a period so that individuals had time to regularise their status by applying for other visas or for waivers.
Motsoaledi’s decision was not an administrative decision, subject to the fair process requirements of the Promotion of Administrative Justice Act, argued Jamie. A court could only intervene if the government had acted irrationally in law: if there was no connection between the purpose (to end blanket exemptions) and the means used to achieve it.
But Budlender argued that, even on that limited basis, the government’s case failed. The government admitted that Motsolaedi had made a final decision to end blanket exemptions, he said. But the law required prior consultation, otherwise it would have acted irrationally. And the minister had himself said he had not consulted those affected before or even after deciding to end blanket exemptions.
So on the minister’s “own version, it is absolutely clear that the principle of procedural rationality has been violated”, said Budlender.
After four days of argument, the court reserved judgment. If the HSF or the ZIF succeeds on even one of their grounds, it would likely mean a reprieve for ZEP holders. But for how long would depend on which ground succeeds and the order of the court.
The HSF has asked for a final order — setting aside the minister’s decision and keeping the status quo until the minister makes a new, lawful decision. The ZIF has asked for an interim interdict, pending a full hearing of its case to set aside the decision.
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