Home Affairs Minister Aaron Motsoaledi has lost his appeal in the Pretoria High Court against a judgment that requires him to reconsider his decision to terminate the Zimbabwe exemption permit (ZEP) regime.
The court ruled on Monday that his application had no reasonable prospects of success after assessing the quality of evidence Motsoaledi had considered when he decided to terminate the ZEP regime.
The ZEP gives 178 000 Zimbabwean permit holders the right to live legally in South Africa.
Motsoaledi’s department has repeatedly terminated the ZEP programme, and then issued last-minute extensions amidst a flurry of objections, the latest being the ongoing legal battle launched by the Helen Suzman Foundation and Consortium for Refugees and Migrants in South Africa (CoRM).
The applicants asked the court to review Motsoledi’s decision after the ZEPs were due to expire on 30 June 2023.
The court ruled that Motsoaledi’s decision to terminate the ZEP regime was “unlawful, unconstitutional and invalid”, and ordered him to reconsider the matter “following a fair process” in compliance with the law.
Instead, Motsoaledi filed an application for leave to appeal the ruling.
This week the court refused to hear his application saying it had no prospect of success and that Motsoaledi had not filed an affidavit highlighting his rationale for the decision.
Instead, the director-general of home affairs had deposed affidavits to respond to the matter.
“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.
The court rejected the argument that Motsoaledi’s decision is not subject to review under the Promotion of Administrative Justice Act (Paja) since it was an executive decision.
However, Motsoaledi’s team had earlier told the court that he had not consulted with the people who would be impacted by his decision before he terminated the ZEPs.
The ZEPs remain valid while the minister goes back to the drawing board to reconsider his decision to terminate the programme.
