South African Court Declares Termination Of Zimbabwean Exemption Permit Unlawful And Unconstitutional
The Minister of Home Affairs’ decision to terminate the Zimbabwean Exemption Permit program has been deemed unlawful, unconstitutional, and void.
A full bench of three judges at the Pretoria High Court has ordered the minister to review the matter in accordance with a fair procedure that adheres to the applicable laws.
During this period of review, the permits will continue to be valid for an additional 12 months, extending until the end of June 2024.
Furthermore, individuals holding the Zimbabwean Exemption Permits (ZEP) will be safeguarded against arrest and deportation.
The Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa initiated the legal action after the minister’s announcement in 2021 regarding the termination of the program.
Despite granting subsequent extensions, the minister maintained his position that the 178,000 permit holders must either apply for alternative visas if they were eligible or return to their country of origin.
In the highly anticipated ruling on Wednesday, Judges Colleen Collis, Gcina Malindi, and Mandlenkosi Motha (as the court) highlighted that the minister had failed to seek input from those impacted before making the decision.
They emphasized that the initial call for representations was conducted “after the fact” and did not constitute a genuine consultation.
The judges stated that the invitation was essentially meaningless in terms of providing a meaningful opportunity for affected parties to have their voices heard.
The judges said throughout the answering affidavit (deposed to by the director-general of the department) there was a “notable disdain for the value of public participation”.
The judges found that the minister’s decision to terminate the program was procedurally unfair and irrational due to the lack of consultation.
They emphasized that no effort was made to evaluate the consequences for ZEP holders and their children.
“As a decision of this consequence impacts over 178,000 permit holders, it would have required proper information on who would be affected, to what degree and what measures were in place to ameliorate this impact.
“It further requires a careful assessment of the current conditions in Zimbabwe.
“Before this court, there is simply no admissible evidence from the Minister on whether he took these considerations into account and how.”