ZEP decision unlawful, unconstitutional and invalid
The decision by the Minister of Home Affairs to terminate the Zimbabwean Exemption Permit programme has been declared unlawful, unconstitutional and invalid, reports GroundUp.
Three judges, sitting as a full Bench in the Gauteng High Court (Pretoria), have directed the Minister to reconsider the issue ‘following a fair process’ that complies with the relevant laws.
Pending the outcome of that process, the permits will remain valid for another 12 months (until the end of June 2024), and ZEP-holders have protection from arrest and deportation.
The case was brought by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in SA after the Minister announced the end of the programme in 2021.
Subsequently, he granted further extensions but remained adamant that the 178 000 permit holders must either apply for other visas, if they qualified for them, or return ‘home’.
In the much-anticipated ruling yesterday, Judges Colleen Collis, Gcina Malindi and Mandlenkosi Motha (writing as the court) said the Minister had made no attempt to solicit representations from those affected before he took the decision.
The first call for representations had been done ‘after the fact’ and was not a ‘genuine consultation’.
The invitation was ‘meaningless’, they wrote. The judges said throughout the answering affidavit (deposed to by the DG of the department) there was a ‘notable disdain for the value of public participation’.
The judges said the Minister’s failure to consult, rendered the decision to terminate the programme procedurally unfair and irrational.
They said no attempt was made to assess the impact on ZEP holders and their children.
The Minister had also ‘flatly refused’ to engage with any representations from the Scalabrini Centre, saying ‘there is no scope for reconsideration’.
On this basis, again, the decision had to be reviewed and set aside, reports GroundUp.
The Minister had also not placed any facts before the court showing that he had consulted on conditions in Zimbabwe.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.