By Lehlohonolo Lehana.
The full bench of the Gauteng High Court in Pretoria heard the Department of Home Affairs’ leave to appeal court’s decision that declared termination of the Zimbabwe Exemption Permits unconstitutional and unlawful.
Home Affairs minister Aaron Motsoaledi is appealing the High Court’s 28 June ruling that found his decision to end the ZEPs “unlawful, unconstitutional, and invalid”.
Motsoaledi is seeking an order to argue its case before the Supreme Court of Appeal (SCA).
The court extended the permits for 12 months from 28 June, pending the conclusion of a “fair process” that includes an adequate public participation process the court found had not been done before the 7 June gazette for the ZEP termination.
The June judgment followed the Helen Suzman Foundation’s application to set aside Motsoaledi’s announcement to discontinue the special permits, which began in 2009.
In their judgment, Judges Colleen Collis, Mandlenkosi Motha and Gcina Malindi ruled the matter go back to Motsoaledi for reconsideration due to the minister’s failure to conduct a proper public participation process.
However, Advocate William Mokhare representing Motsoaledi, had argued the court erred in its ruling by relying on the Promotion of Administrative Justice Act (PAJA) in determining that his client did not afford ZEP holders a reasonable opportunity to make representations.
Mokhare said its importance entailed the government’s prerogative to deal “with the acceptance of foreigners within its own borders” – factors, Mokhare contended, that included “asylum, immigration, refugee, economic, political, and socioeconomic considerations”.
He recalled that the reasons for the special dispensation was political and economic “instability” in Zimbabwe, which caused “strain” on South Africa due to “the influx” of citizens in the country’s northern neighbour.
“The only way the minister’s decision could be attacked is whether the minister’s decision is rational. Rationality is a low-threshold type of review because it is more linked to the principle of deference, where the courts are loathed to interfere with executive decision-making, particularly where it is more linked to policy,” Mokhare said, adding that policy was not a “specialised terrain” of the courts.
Mokhare argued: If the court finds that the initial decision, which was to give reprieve on a temporary basis for Zimbabweans because of the situation in their country, then the court cannot interfere with the decision to terminate if the executive [the government] concludes that those conditions are no longer prevalent. And therefore, this dispensation must come to an end.
But Mokhare said Motsoaledi was not opposed to extending the deadline.
The Helen Suzman Foundation, Advocate Carol Steinberg, argued during court proceedings that Motsoaledi failed in his duty to open formal discussions with permit holders before making a decision on the non-renewal of the ZEP in November 2021.
“It is common cause that this decision impacted on the lives of 178 000 people and their children and of course, all the South Africans whose lives are inextricably bound up with the 178 000 and in law there is a watertight obligation to hear what affected people have to say before a decision impacting on their lives is made.
“It is the first principle of natural justice. It’s common cause that the minister did not in fact hear from the affected people before making the decision {to terminate the ZEP] … he called for representations later,” she told the same full bench on Monday.
Steinberg said it did not matter whether the PAJA or the principle of legality was at play in the case.
“There is no court in South Africa that would ever say the minister would make a decision which profoundly impacts on the lives of many people without hearing from them first. This affects people’s whole lives, where they live, where their children go to school [and] how they earn a living,” the advocate said.
But Mokhare dismissed the argument that there was no public consultation, saying the law allowed participation whether before or after a decision is taken and that the government had solicited views and opened visa applications for existing ZEP holders, who would not be affected by the December deadline should it arrive without their applications being finalised.
Advocate David Simonsz, representing the Consortium for Refugees and Migrants in South Africa (Cormsa), supported Steinberg’s submissions, saying there were no compelling grounds to grant the appeal.
“Even on the principle of rationality, which is a common cause, there needs to be a fair opportunity to affect the mind of the decision-maker.
“The minister has been quoted on record as indicating that he has made up his mind on this issue,” the advocate told the court.
The High Court reserved judgment.