SCA Denies Motsoaledi’s Appeal in ZEP Termination Case: Zimbabwean Exemption Permit Holders Remain Protected

The Supreme Court of Appeal (SCA) of South Africa made a landmark judgment earlier this month, which solidifies the status of Zimbabwean Exemption Permit (ZEP) holders in the nation. The decision delivered a decisive blow to the appeal aspirations of Home Affairs Minister Aaron Motsoaledi. The SCA found that there was no reasonable prospect for success in his application to contest the High Court of Pretoria’s verdict which had revoked the termination of the ZEP program as unlawful, unconstitutional, and invalid. The initial ruling deemed the cessation of the permits, which would have affected approximately 178,000 Zimbabwean nationals residing in South Africa, unfairly decided without adequate public participation or assessment of the consequences on the affected individuals and their families.

The High Court’s judgment in June 2023, which Minister Motsoaledi aimed to overturn, specifically instructed him to re-evaluate the decision to end the ZEP program through a fair process conforming to the relevant laws. In the meantime, the existing permits were extended for an additional year, ensuring ZEP holders would legally remain in South Africa until June 2024 without the threat of arrest or deportation.

The Pretoria high court’s strong stance came after Minister Motsoaledi announced the program's end in 2021. Despite offering several subsequent extensions, the minister insisted that permit holders must transition to other types of visas or face returning to Zimbabwe. The subsequent appeal to the SCA by the minister, anticipated by many, was speculated to put ZEP holders in a precarious situation should it have led to an automatic suspension of their legal status during the appeal period. However, the SCA’s dismissal has now maintained the certainty of the High Court's protection.

This case arose following the legal challenge presented by the Helen Suzman Foundation (HSF) and the Consortium for Refugees and Migrants in SA. The alliance was formed in response to the minister’s decision, which they argued was made without proper consultation. Affidavits presented suggested a dismissive attitude towards public participation and consultation. The inadequacy of the engagement process and lack of an impact assessment on ZEP holders substantiated the claim of irrationality in the process.

In their ruling, judges Colleen Collis, Gcina Malindi, and Mandlenkosi Motha emphasized the significance of genuine consultation, pointing out that the move to end the program displayed a considerable disregard for such engagement. The calling for representations had been executed after the decision was made, rendering it ineffective and insincere.

The critical ruling by the SCA upholds the rights of ZEP holders, relieving a significant population of the concern of a precarious legal standing and possible deportation. It reinforces the mandate that the minister follow a fair and rigorous process, respecting public participation should there be any contemplation of changing the permit arrangements moving forward. Thus, as it stands, ZEP holders are allowed to continue living in South Africa under the same conditions as before the program's attempted termination, until at least the end of June 2024, or until a further legal decision is made, potentially from the Constitutional Court.