South Africa’s Constitutional Court on Tuesday, 18 June, dismissed an application by the Minister of Home Affairs, Aaron Motsoaledi, for leave to appeal a June 2023 Pretoria High Court judgment which held that the Zimbabwean Exemption Permit (ZEP) had been unlawfully terminated.
In June 2023, the Pretoria High Court ruled that the termination of the ZEP had been unlawful and unconstitutional.
The High Court ruling ordered the minister to reconsider the termination of the programme and follow a fair, lawful and consultative process.
Motsoaledi then appealed the ruling but it was dismissed by the Supreme Court of Appeal on the grounds it had no prospects of success.
Subsequently, the Minister turned to the Constitutional Court, essentially on the same grounds, asking that it adjudicate over the issue.
In the application lodged in the Constitutional Court, Home Affairs director-general Livhuwani Tommy Makhode, who was the second applicant after the minister, sought leave to appeal against the whole June 2023 judgment of the Pretoria High Court.
The Helen Suzman Foundation (HSF), a non-governmental organisation, opposed the application by the Minister.
In a statement issued this Wednesday, 19 June, HSF confirmed the dismissal of Motsoaledi’s appeal by the Constitutional Court. It said:
<blockquote>
Yesterday, the Constitutional Court dismissed an application by the Minister of Home Affairs (Minister) for leave to appeal a June 2023 Pretoria High Court judgment which held that the Zimbabwean Exemption Permit (ZEP) had been unlawfully terminated.
That June 2023 judgment was unequivocal in holding that the Minister is obliged to follow a fair consultation process, which duly considers the rights of those affected by terminating the ZEP before he be lawfully allowed to do so.
The Constitutional Court’s order affirms with finality that this most basic of legal duties binds the Minister, notwithstanding changes in office that may occur once a new government is formed when deciding the ZEP’s future.
It is a vital affirmation – for ZEP holders and South African citizens alike – that principles of fair hearing and rational government are indispensable to our constitutional democracy.
</blockquote>
More: <a href="https://www.pindula.co.zw/">Pindula News</a>

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South Africa's Constitutional Court Dismisses Appeal By Home Affairs Minister Against ZEP Judgment

Helen Suzman Foundation (HSF), director Nicole Fritz, and her family received threats on Twitter the day before the foundation’s court action to stop the discontinuation of the Zimbabwean Exemption Permit (ZEP) by South Africa’s Department of Home Affairs.
On 10 April, Twitter user one Freeman Bhengu (@zibuseman) warned they would deal with Fritz and her daughter. Wrote Bhengu:
<blockquote>
We are watching her and we know where she stays, her daughter, and their closed offices in Parktown, we will deal with her tomorrow @Nicole Fritz.
</blockquote>
The HSF, along with the Zimbabwe Immigration Federation and the Zimbabwean Exemption Permit Holders, are challenging in court the decision by the Department of Home Affairs to scrap the ZEP.
Around 178 000 ZEP holders will be affected by the decision.
The hearing started in the Pretoria High Court on 11 April.
<a href="https://www.groundup.org.za/article/twitter-threats-to-litigants-in-zimbabwean-exemption-permit-court-case/">GroundUp</a> reported Fritz as saying the threats are “enormously disturbing” and that those working in social justice or human rights should not experience such harassment.
She said other litigants were also receiving threats.
Meanwhile, the Global South Against Xenophobia (GSAX) has issued a statement calling on the South African Police Service (SAPS) and South African Human Rights Commission (SAHRC) to act.
GSAX urged SAPS to protect Fritz during the duration of the court hearings or until the perpetrators are arrested and to investigate all the threats.
Fritz said this isn’t the first time she has been threatened. She said the same person has emailed her in the past telling her that she is being watched.
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

Litigants In Zimbabwean Exemption Permit Court Case Receive Twitter Threats

Advocate Steven Budlender, who is representing the Helen Suzman Foundation (HSF) in the Pretoria High Court, has argued that the decision by South Africa’s Home Affairs Minister Aaron Motsoaledi to terminate the Zimbabwean Exemption Permit (ZEP) was irrational and procedurally unfair.
HSF is seeking a declaration that the Minister’s decision is unconstitutional, unlawful, and invalid and that it be set aside as well as a temporary order directing that, reported <a href="https://www.sabcnews.com/sabcnews/home-affairs-decision-to-terminate-zimbabwean-exemption-permit-is-invalid/">SABC News</a>.
Budlender on Tuesday argued that Motsoaledi should reconsider the decision to terminate the ZEP, following the proper process. He said:
<blockquote>
As we argue in our heads and in what follows, procedural rationality under the principle of legality required that ZEP holders and the public be afforded a hearing.
The foundation also argued that the decision was taken without the minister considering the impact it would have on the lives of ZEP holders, their children, and the broader public.
The inevitable effect of the minister’s decision is that, on 30 June 2023, tens of thousands of ZEP holders will be left undocumented.
This is due to the legal and practical barriers to securing alternative visas and permits.
… My client does not suggest and does not ask this court to find that the Minister may never terminate the ZEP programme.
That is not my client’s case and that is not the submission I make, but my client does say and I do submit that because any termination has such profound consequences in order to be valid, it must firstly, follow a fair and procedurally rational consultation process.
Secondly, be consistent with fundamental constitutional rights enshrined in our constitution and thirdly, be based on lawful, rational and reasonable grounds.
</blockquote>
The application by the Helen Suzman Foundation has been opposed.
Around 2008, thousands of Zimbabweans crossed the border into South Africa seeking better economic opportunities after the Zimbabwean economy had virtually collapsed.
South Africa then introduced the Dispensation of Zimbabwean Permit (DZP) to legalise Zimbabweans living and working in the country in 2009.
In 2014, the DZP was renamed to the Zimbabwe Special Permit (ZSP). The name changed again three years later to Zimbabwe Exemption Permit or ZEP.
In September 2022, South Africa’s Department of Home Affairs extended the permit which was due to expire on December 31, for a further six months to June 30, 2023.
South Africa allowed ZEP holders with critical skills to apply for visas to remain in the country.
According to the Zimbabwean Exemption Permit Holders Association (ZEPHA), the number of permit holders is about 160 000, but each person has an average of three to four dependents.
This means that close to one million Zimbabweans will be negatively affected by South Africa’s decision to discontinue the ZEP scheme.
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

"SA Decision To Terminate Zimbabwean Exemption Permit Is Invalid"

The Helen Suzman Foundation (HSF)’s legal team on Tuesday, 11 April 2023 said terminating the Zimbabwean Exemption Permit (ZEP) scheme without proper public consultation is unlawful.
The Pretoria High Court is currently hearing a challenge that the HSF brought against the termination of the special permit for Zimbabweans by South Africa’s Department of Home Affairs.
<a href="https://ewn.co.za/2023/04/11/terminating-zep-without-proper-public-consultation-unlawful-hsf-tells-court">Eye Witness News</a> reported that in his opening address, Advocate Steven Budlender, for the foundation, said the termination of the ZEP programme will turn upside down the lives of people who had been in South Africa legally for several years.
Budlender argued that neither ZEP holders nor South Africans at large were given the chance to express their thoughts before the decision was taken. He said:
<blockquote>
We have a decision that is going to fundamentally change people’s lives and it’s a decision that was taken without any attempt to hear them first – a common cause.
It’s a decision that the minister has told these people repeatedly he will not reconsider.
… In a constitutional dispensation can a minister say to people who’ve been here 13 years lawfully: ‘I’m going to decide your fate, I’m going to put in place a decision which is going to decide your fate and which requires you effectively to leave the country’ – without hearing them first?
And we say, no. We say if the Constitution means anything, and if PAJA (Promotion of Administrative Justice Act) means anything and if the principle of legality means anything that could never be a proper view.
</blockquote>
Around 2008, thousands of Zimbabweans crossed the border into South Africa seeking better economic opportunities after the Zimbabwean economy had virtually collapsed.
South Africa then introduced the Dispensation of Zimbabwean Permit (DZP) to legalise Zimbabweans living and working in the country in 2009.
In 2014, the DZP was renamed to the Zimbabwe Special Permit (ZSP). The name changed again three years later to Zimbabwe Exemption Permit or ZEP.
In September 2022, South Africa’s Department of Home Affairs extended the permit which was due to expire on December 31, for a further six months to June 30, 2023.
South Africa allowed ZEP holders with critical skills to apply for visas to remain in the country.
According to the Zimbabwean Exemption Permit Holders Association (ZEPHA), the number of permit holders is about 160 000, but each person has an average of three to four dependents.
This means that close to one million Zimbabweans will be negatively affected by South Africa’s decision to discontinue the ZEP scheme.
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

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