Minister of Home Affairs Aaron Motsoaledi, in a media briefing, welcomed the opportunity to appeal to the Supreme Court, saying the "importance of the Supreme Court appeal in achieving legal clarity on visa regulations".
The Home Affairs was granted leave to appeal the ruling by three judges sitting as a full bench in the Pretoria High Court who deemed his decision to terminate the Zimbabwean Exemption Permit (ZEP) program unlawful, unconstitutional, and invalid.
"This is crucial to prevent similar legal challenges and ensure smooth administration of immigration policies in the future," Motsoaledi said.
He said the ZEP was established in 2009 as a "temporary measure to manage a surge of economic migrants from Zimbabwe who exploited the asylum seeker system during a period of a global recession".
"I want to explain this because many people believe anybody from Zimbabwe is on the ZEP. There are many people from Zimbabwe in this country, who are on a study permit, business visa, general work visa, critical skills... and some who are permanent residents, for that matter," he said. "But this particular group, it was known that they won't qualify for any of those. At that time, when they arrived in that's why they were given a special permit."
"It was meant to be a short-term solution initially set to expire in 2014," Motsoaledi said.
"However," he added, "many people, not genuinely seeking refuge, rushed to South Africa under the guise of asylum seekers. Despite being economically driven migrants, they exploited the refugee label. The refugee reception centers, not equipped for such an influx, were overwhelmed leading to document irregularities."
Blanket visa exemptions allowed Zimbabweans to live and work legally in South Africa. They were introduced in 2009 under the Dispensation of Zimbabweans Project (DZP). This scheme was extended and renamed the Zimbabwean Special Permit (ZSP) in 2014 and the ZEP in 2017.
At least 178,000 individuals have held ZEP permits for more than a decade.
Motsoaledi suspended the ZEP system in November 2021. Later, he extended the suspension until December 2022. And then, he extended it again, this time until June 30, 2023. The purpose of these extensions was to provide ZEP holders with more time to apply for alternative permits. If they fail to do so, they face the risk of deportation or voluntary repatriation to Zimbabwe.
The minister, in December 2023, announced that 178,000 Zimbabweans on ZEP permits were granted exemption permits until November 29, 2025.
Legal battle
The Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa sued the government after the Home Affairs Minister ended the program for Zimbabweans without following proper procedure. They argued the decision should be reviewed because it wasn't fair and seemed politically motivated.
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In December 2023, the High Court ruled in favor of the foundation, declaring the termination unconstitutional and the judges directed the minister to reconsider the issue "following a fair process" that complies with the relevant laws. The High Court ruled the termination was illegal because the Minister didn't consult the 178,000 permit holders beforehand.
The Home Affairs department took the fight to the SCA and was granted leave to appeal the High Court judgment. The High Court wanted the Minister to restart the decision-making process with proper consultation.
Meanwhile, the Helen Suzman Foundation (HSF) is fighting a court battle to stop Home Affairs Minister Motsoaledi from appealing a decision that opposes the Zimbabwean Exemption Permit (ZEP) program continuing. The Foundation says the "unlawfulness of Motsoaledi's decision to stop the ZEP had been determined on undisputed "common cause" facts which simply cannot be appealed."
Motsoaledi wants the Constitutional Court to hear his appeal. He argues he did consult (though after the decision) and that conditions in Zimbabwe have improved, justifying ending the program.
HSF says this is untrue.
They argue the Minister's sudden decision hurts thousands of Zimbabweans who have lived in South Africa for years.
The Foundation says the High Court's ruling was clear: the lack of consultation and the Minister's absence in the case made the decision unlawful. They believe there's no reason for the Constitutional Court to hear the appeal.
