Update on Zimbabwean ZEP Permits

The Zimbabwean Exemption Permit (ZEP) allow over 178 000 Zimbabweans in South Africa to live and work in the country, which was to come to an end after Minister Motsoaledi decided to abolish the programme.

In June, the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa challenged the Minister’s decision and won, but the defiant Minister filed an application for a leave to appeal. On 16 October 2023 the Pretoria High Court dismissed Home Affairs Minister Aaron Motsoaledi’s application for leave to appeal, which now declares his decision to terminate ZEP unconstitutional. The court found crucial to determining whether there were prospects for a successful appeal was the quality of the evidence — on what the minister had taken into account when he made the decision to terminate the ZEP regime.

The court said Motsoaledi hadn’t submitted an affidavit; instead it had been the director-general of home affairs who had deposed affidavits. “What renders the minister’s application destined for failure is the minister’s failure to depose to an answering affidavit in the review proceedings. Only the minister, as the decision maker, could give evidence as to what passed through his mind,” the court said. It also rejected the argument by the minister’s legal team that his decision wasn’t subject to review under the Promotion of Administrative Justice Act (PAIA) since it was an executive decision, and not administrative in nature, and therefore reviewable by a court only if it was irrational in law.

As a result, our neighbours may stay on until the next xenophiobic outburst by the Minister.

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