In a significant victory for nearly 200,000 Zimbabwean Exemption Permit (ZEP) holders, the Supreme Court of Appeal (SCA) has dismissed with costs the Department of Home Affairs’ attempt to overturn an interim interdict protecting them from arrest and deportation. The ruling, delivered on Friday, ensures that the interdict remains in place pending further court proceedings initiated by the Zimbabwe Immigration Federation.
The Federation is challenging the authority of the Minister of Home Affairs to terminate the ZEP regime, arguing that such a decision rests solely with Parliament. The special permit dispensation, in effect since 2009, has allowed approximately 180,000 Zimbabwean nationals to live and work in South Africa.
Vindren Magadzire, director of the Zimbabwe Immigration Federation, explained that his organisation's case centres on the termination of the ZEP programme by the Minister of Home Affairs back in 2021, when then home affairs minister Aaron Motsoaledi announced the termination of the ZEP. "The programme allowed approximately 180,000 Zimbabweans to live and work in South Africa. In 2021, the minister of home affairs announced plans to terminate the ZEP permits, sparking legal actions from the Zimbabwe Immigration Federation," Magadzire told IOL in an interview.
Magadzire further elaborated on the Federation's motivation for taking legal action, stating, "The Zimbabwe Immigration Federation was inspired to go through courts due to the South African minister of home affairs’ decision to terminate the permits. The decision would have significant implications for approximately 180,000 Zimbabweans living and working in South Africa under the ZEP permit program."
The Federation is seeking a court declaration that the termination of the ZEP permits is unlawful, a setting aside of the termination decision, and the protection of permit holders’ rights. Magadzire believes that a lasting solution would be granting ZEP holders permanent residence status in South Africa.
The legal battle has a complex history. In June 2023, the Gauteng High Court in Johannesburg ruled on two matters related to the attempted termination of the ZEP regime. One was an application by the Helen Suzman Foundation (HSF), in which the court declared the minister’s decision unlawful and directed him to reconsider it following a “fair process”. The court also granted protection to ZEP holders in the interim.
The Federation’s case was slightly different. It secured an interim interdict (Part A) preventing the arrest and deportation of ZEP holders pending a review (Part B) of the minister’s decision. The Minister then applied to the Supreme Court of Appeal to have the Part A order set aside, arguing that the pending review was now moot, given that his appeals in the HSF matter had been rejected and he was now “following a fair process” as ordered by the court.
However, the Federation opposed the appeal, arguing that an interim order was not appealable in law and that it had amended the relief it was claiming in Part B, raising distinct issues not considered in the HSF matter.
Judge David Unterhalter, writing for the court, noted that while both the HSF and Federation matters had “covered the same territory”, the Federation had now raised other distinctive grounds. These included the argument that the minister had not established “good cause” for terminating the ZEP, given that the circumstances in Zimbabwe have not materially changed.
Furthermore, the Federation argued that the minister had made an error in law by basing his decision on the belief that ZEP holders would be required to leave South Africa. They contended that those who had fled Zimbabwe would qualify as refugees and enjoy protection under the principle of non-refoulement, preventing their deportation. These grounds were not covered in the HSF review findings.
As Nicole Fritz, executive director of the Helen Suzman Foundation, said last year, "When the minister first signalled his intention to appeal the court’s June 2023 judgment, the foundation asked him to leave the ZEP in place until he exhausted the appeal process. The minister refused." The court had previously stated that the minister's appeal had no prospects of success, but Home Affairs persisted, taking the matter to the Supreme Court of Appeal.
Judge Unterhalter emphasized that the HSF order remitted the matter back to the minister for reconsideration following a fair process. He stated that "The premise of the HSF order is that it is open to the minister to exercise his powers under the Immigration Act to decide whether or not to extend the ZEP regime."
In contrast, the Federation's claim is "predicated upon the proposition that the minister cannot exercise this power and no point would be served in sending it back to the minister. Rather the ZEP holders enjoy constitutional rights to remain in South Africa, unless Parliament decides otherwise." Judge Unterhalter said this, if granted, was “considerably more far-reaching, because it reaches into the future and is not based upon a reconsideration by the minister of his decision to terminate the ZEP regime”.
Ultimately, the Supreme Court of Appeal dismissed the minister’s appeal and ordered him to pay the costs. Judge Unterhalter clarified that this decision should not be interpreted as a finding on the prospects of the grounds advanced by the Federation, which will be adjudicated in the High Court in due course.
The Zimbabwe Immigration Federation will now proceed with Part B of its court challenge, seeking a ruling that only Parliament has the authority to terminate the constitutional rights of the 180,000 ZEP holders. The outcome of this case will have significant implications for the future of Zimbabweans living and working in South Africa under the ZEP programme.
Follow Us on Twitter
