‘Zimbabweans still enjoy freedom of movement’: Home Affairs to appeal ZEP judgments
According to the minister, the first judgment cannot go unchallenged as this will set a "dangerous precedent".
Home Affairs Minister, Aaron Motsoaledi, briefs the media in Pretoria on 14 April 2023. Picture: Nigel Sibanda
The Pretoria High Court this week ruled against Motsoaledi on two separate judgments, which declared the minister’s November 2021 decision to terminate the ZEP as unconstitutional and invalid.
In the first judgment, the court concluded that Motsoaledi failed to consult with ZEP holders before making his decision, thus, resulting in an unfair process.
The full bench, therefore, set the decision aside and ordered that the matter go back to Motsoaledi for reconsideration.
The ZEP will remain valid for the next 12 months pending the process.
After receiving legal advice, Motsoaledi has decided to lodge a leave to appeal application against the first judgment, which involved the Helen Suzman Foundation (HSF).
According to the minister, the judgment cannot go unchallenged as this will set a “dangerous precedent”.
“The findings of the court on the applicability of certain sections 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 are Zimbabwean nationals,” Motsoaledi’s spokesperson Siya Qoza said in a statement on Thursday.
“The decision that the minister took not to extend the Zimbabwean exemptions involves weighing of policy considerations which falls within the domain of the executive.”
Qoza said the minister was also of the view that the judgment deals with matters relating to the separation of powers, which he believed was another “strong ground for appeal”.
‘Freedom of movement’
Motsoaledi will further challenge the second judgment, which granted an interdict to the Zimbabwe Immigration Federation to prohibit the department from arresting, deporting and detaining any person who doesn’t possess a valid ZEP.
“It is not clear as to what is the purpose of [the] interdict when in fact the minister issued directives to ensure that the affected Zimbabwean nationals continue to enjoy the protections afforded by the directives,” Qoza said.
Qoza highlighted that no Zimbabwean national has been threatened in any manner or deported.
“They continue to enjoy freedom of movement between South Africa and Zimbabwe and anywhere, as pleaded in the affidavits filed in court on behalf of the minister showing significant movements to and from Zimbabwe by the affected Zimbabwean nationals and their families.
“Furthermore, many affected Zimbabwean nationals continue to apply for other visas and waivers in large numbers as provided for in the Immigration Act 13 of 2002,” he added.
The ZEP deadline was extended earlier this month by six months to 31 December, with Motsoaledi citing a wave of visa and waiver applications from affected Zimbabwean nationals.
The decision was taken to give the ZEP holders an opportunity to apply for one or other visas provided for in the Immigration Act, which they may qualify for.
The ZEP has allowed tens of thousands of Zimbabweans to live, work and study in South Africa since 2009 as part of the Dispensation of Zimbabweans Project (DZP).
About 295 000 Zimbabweans applied and about 245 000 permits were issued at the time.