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Thupeyo Muleya Beitbridge Bureau

South Africa’s Home Affairs Minister Dr Aaron Motsoaledi says he intends to appeal against the two judgments which set aside his decision to terminate the Zimbabwe Exemption Permits (ZEP).

In a statement, his spokesperson, Mr Siya Qoza said the minister believed he had a legal foot to challenge the ruling by the Pretoria High court made on Wednesday.

“The Minister has carefully studied the judgment and has taken legal advice on it. The two judgments cannot go unchallenged,” he said.

“The finding of the court on the applicability or otherwise of sections 3 and 4 of the Promotion of Administrative Justice Act (“PAJA”) is highly questionable, particularly the requirement for public participation when a decision of this nature is taken, affecting a specified category of persons only. In this instance, the affected Zimbabwean nationals”.

He said in deciding the fate of the ZEPs, the Minister weighed policy considerations which fall within the domain of the Executive.

In addition, Dr Motsoaledi believes that the decision he took was correct and took into consideration all the interests and rights implicated, including those of children.

The Minister has already instructed the legal representatives to launch an application for leave to appeal against the judgments and orders of the court.

There are close to 170 000 Zimbabweans living and working South of the Limpopo under the ZEP permits.

In 2021, South Africa’s cabinet resolved not to extend the permits further.

They announced that the permit holders should migrate to mainstream permits and that those who will fail to make, it should depart by June 30 this year.

However, the Home Affairs ministry has since extended the grace period to December 31 this year.

Pretoria High Court Judges, Colleen Collis, Gcina Malindi and Anathi Motha made the landmark ruling on Wednesday.

However, a decision is yet to be made with regard to Advocate Chitando’s application.

The three judges said the Home Affairs’ decision was unlawful and invalid.

“The first respondent’s decision to terminate the Zimbabwe Exemption Permits (ZEP), to grant the ZEP holders limited extension of the ZEP of only 12 months, and to refuse further extension beyond 30 June 2023 as communicated in directive 1 of 2021, as published as GN 1666 in Government Gazette 4527 of 7 January and 2 September 2022 and the accompanying press statement is declared unconstitutional, unlawful and invalid,” read part of the ruling.

“The first respondent referred to in paragraph 147 is reviewed and set aside”.

The judges also directed the Home Affairs Minister to reconsider his decision following a fair process that complies with the law.

In addition, the court directed that the existing ZEPs shall be deemed to remain valid for the next 12 months.

Further to that, the ZEP holders will continue to enjoy the protections afforded by Immigration Directive 1 of 2021.

These include that they cannot be detained, arrested or deported, depart and enter due to the state of their immigration status.

“No holder of the exemption should be required to produce a valid exemption certificate or authorization letter to be in South Africa,” says the ruling.

“First respondent and any other parties opposing the application, are directed to pay the costs, jointly, severally, the one paying the other to be absolved”.

Following the announcement, to terminate the ZEPs in 2021, several migrant groups including the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa, the Zimbabwe Immigration Federation took the South African government to court.

Another Zimbabwean lawyer, Advocate Simba Chitando also made a similar application.

They argued that the resolution by the cabinet would negatively affect the migrants who had been in South Africa for over a decade.

In addition, they wanted the decision by the Home Affairs Minister, Dr Aaron Motsoaledi and his subordinates to be set aside and allow the ZEP holders more time to fix their documents. @tupeyo