The Department of Home Affairs says Zimbabweans should be able to return to their country.
Government has no justification to allow the Zimbabwean Exemption Permit (ZEP) programme to continue, the Department of Home Affairs argued in the Gauteng High Court in Pretoria on Monday.
Home Affairs Minister Aaron Motsoaledi and the department’s director-general Tommy Makhode are seeking permission to approach the Supreme Court of Appeal (SCA) to overturn a previous judgment, which declared the termination of the ZEP programme unlawful and unconstitutional.
The leave to appeal application has been opposed by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa (Cormsa).
During proceedings, the applicants’ lawyer Advocate William Mokhare told the full bench of the court on Monday that his clients believed the SCA could come to a different conclusion in determining whether there were reasonable prospects of success.
Mokhare argued the ZEP, which was introduced in 2009, had been always intended to be a temporary solution to allow Zimbabweans who fled political and economic turmoil in their country to live and work in South Africa “until government was satisfied” that it could terminate the programme.
The advocate highlighted even the court, in their 28 June ruling, acknowledged the non-renewal of the ZEP although it criticised Motsoaledi for failing to notify or consult permit holders.
“So the issue really before court, as it correctly pointed out, was whether the termination of the dispensation of the exemption programme that was given to the Zimbabwean nation accorded with the constitutional prescripts and whether it was done in a manner that is permitted by law,” Mokhare said.
No legitimate purpose: Mokhare argued government had “no legitimate purpose” for the ZEP programme to continue since the original conditions that Zimbabweans escaped from were no longer prevalent.
“We submit that on a proper scrutiny of this decision, looking at how initially it was taken in 2009 and the purpose it sought to serve and its termination, it is one that is more attune to the policy-laden decision than an administrative decision,” he told Judges Colleen Collis, Mandlenkosi Motha and Gcina Malindi.
Therefore, the advocate said, the court had to determine whether the ZEP’s termination was rational.
“The court ought to have embarked on that exercise of rationality [because] what the court did was to embark on a procedural rationality inquiry, but it intertwined it with procedural fairness and the two are quite distinct,” Mokhare said.
He further pointed out that although Motsoaledi did not consult prior to the termination in November 2021, he did so post the decision. Home Affairs received 6 000 representations.
“We submit the type of representations that were made and which you have received were of such a nature that did not tilt the scale on the state of mind that the minister had already pronounced himself on. But that again goes to procedural fairness.”
Budget constraints: Mokhare said the impact of the ZEP termination on families, particularly on children, living in South Africa had always been foreseen, but it could have not created an impression that the programme would remain permanent.
“The upshot of it… is to say that no decision can be made by the minister which will result in Zimbabweans having to be returned to their country because then one will argue that they have already cemented their lives in South Africa to an extent that to root them is to disrupt their families and is therefore unconstitutional and infringing their dignity.
“Dignity is a fundamental right which is entrenched in our Constitution, but it is one that requires a balancing exercise in the context of other factors that have to be taken into account when a decision of this nature is to be taken.”
Mokhare said another reason why the ZEP was not renewed was because of Home Affairs’ budget constraints.
“The department requested R146 million and Treasury only made available R15 million, so it was clear the budget was not available to cater to the ZEP programme.”
The permit was set to expire in December 2022 before the minister extended its validity until June 2023.
Motsoaledi later extended the ZEP deadline by another six months to 31 December 2023, citing a wave of visa and waiver applications from affected Zimbabwean nationals.
According to the minister, the decision was taken to give the ZEP holders an opportunity to apply for one or other visas provided for in the Immigration Act, which they may qualify for.