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South Africa’s Constitutional Court on Tuesday, 18 June, dismissed an application by the Minister of Home Affairs, Aaron Motsoaledi, for leave to appeal a June 2023 Pretoria High Court judgment which held that the Zimbabwean Exemption Permit (ZEP) had been unlawfully terminated.
In June 2023, the Pretoria High Court ruled that the termination of the ZEP had been unlawful and unconstitutional.
The High Court ruling ordered the minister to reconsider the termination of the programme and follow a fair, lawful and consultative process.
Motsoaledi then appealed the ruling but it was dismissed by the Supreme Court of Appeal on the grounds it had no prospects of success.
Subsequently, the Minister turned to the Constitutional Court, essentially on the same grounds, asking that it adjudicate over the issue.
In the application lodged in the Constitutional Court, Home Affairs director-general Livhuwani Tommy Makhode, who was the second applicant after the minister, sought leave to appeal against the whole June 2023 judgment of the Pretoria High Court.
The Helen Suzman Foundation (HSF), a non-governmental organisation, opposed the application by the Minister.
In a statement issued this Wednesday, 19 June, HSF confirmed the dismissal of Motsoaledi’s appeal by the Constitutional Court. It said:
<blockquote>
Yesterday, the Constitutional Court dismissed an application by the Minister of Home Affairs (Minister) for leave to appeal a June 2023 Pretoria High Court judgment which held that the Zimbabwean Exemption Permit (ZEP) had been unlawfully terminated.
That June 2023 judgment was unequivocal in holding that the Minister is obliged to follow a fair consultation process, which duly considers the rights of those affected by terminating the ZEP before he be lawfully allowed to do so.
The Constitutional Court’s order affirms with finality that this most basic of legal duties binds the Minister, notwithstanding changes in office that may occur once a new government is formed when deciding the ZEP’s future.
It is a vital affirmation – for ZEP holders and South African citizens alike – that principles of fair hearing and rational government are indispensable to our constitutional democracy.
</blockquote>
More: <a href="https://www.pindula.co.zw/">Pindula News</a>

Pindula News

South Africa's Constitutional Court Dismisses Appeal By Home Affairs Minister Against ZEP Judgment

Full statement by the Helen Suzman Foundation (HSF) on its court application to suspend the arrest or deportation of Zimbabwe Exemption Permits (ZEP) holders, pending an appeal by South Africa’s Home Affairs Minister Aaron Motsoaledi:
<blockquote>
The Helen Suzman Foundation has been compelled to bring an application in order to safeguard the integrity of the judgment finding that the termination of the Zimbabwe Exemption Permits (ZEP) was unlawful and invalid. 
The Minister of Home Affairs seeks now to appeal that judgment. In the ordinary course, the leave to appeal process suspends the operation of the underlying order.
In this case, the risk arises that the expiry date of the ZEP could be run down by running out the appeal process – meaning that there would be no real relief to be granted ZEP holders if that is the Courts’ ultimate determination.
HSF approached the Minister asking that he agree to observe the protections extended to ZEP holders pending the conclusion of the appeal process. This was refused. It is on this basis that HSF approaches the court. 
Shadowy organisations now seek deliberately to misrepresent the HSF’s application – misrepresentations that began circulating online, surprisingly, less than one day after HSF had filed its papers with the parties.
These deliberate misrepresentations are more than mischievous. They look to endanger the staff of HSF, all of whom are South African.
Even more sinisterly, they provide a vivid demonstration of what the Economist magazine this week called “paranoid nationalism.”
These blatant misrepresentations come hard on the heels of incendiary attempts to heap the blame for last week’s devastating fire in Johannesburg’s city centre, in which so many died and were injured, not on those truly responsible but absurdly on NGOs. 
No one should have to be reminded of the role that NGOs have played in this country in securing rights and fighting against corruption and malfeasance.
Coordinated attempts to discredit NGOs and erode the public’s trust through lies and misrepresentation are an attack on democracy itself.
</blockquote>
More: <a href="https://www.pindula.co.zw/">Pindula News</a>

SA NGO Court Application To Stop Deportation Of ZEP Holders | Full Statement

Helen Suzman Foundation (HSF), director Nicole Fritz, and her family received threats on Twitter the day before the foundation’s court action to stop the discontinuation of the Zimbabwean Exemption Permit (ZEP) by South Africa’s Department of Home Affairs.
On 10 April, Twitter user one Freeman Bhengu (@zibuseman) warned they would deal with Fritz and her daughter. Wrote Bhengu:
<blockquote>
We are watching her and we know where she stays, her daughter, and their closed offices in Parktown, we will deal with her tomorrow @Nicole Fritz.
</blockquote>
The HSF, along with the Zimbabwe Immigration Federation and the Zimbabwean Exemption Permit Holders, are challenging in court the decision by the Department of Home Affairs to scrap the ZEP.
Around 178 000 ZEP holders will be affected by the decision.
The hearing started in the Pretoria High Court on 11 April.
<a href="https://www.groundup.org.za/article/twitter-threats-to-litigants-in-zimbabwean-exemption-permit-court-case/">GroundUp</a> reported Fritz as saying the threats are “enormously disturbing” and that those working in social justice or human rights should not experience such harassment.
She said other litigants were also receiving threats.
Meanwhile, the Global South Against Xenophobia (GSAX) has issued a statement calling on the South African Police Service (SAPS) and South African Human Rights Commission (SAHRC) to act.
GSAX urged SAPS to protect Fritz during the duration of the court hearings or until the perpetrators are arrested and to investigate all the threats.
Fritz said this isn’t the first time she has been threatened. She said the same person has emailed her in the past telling her that she is being watched.
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

Litigants In Zimbabwean Exemption Permit Court Case Receive Twitter Threats

Advocate Steven Budlender, who is representing the Helen Suzman Foundation (HSF) in the Pretoria High Court, has argued that the decision by South Africa’s Home Affairs Minister Aaron Motsoaledi to terminate the Zimbabwean Exemption Permit (ZEP) was irrational and procedurally unfair.
HSF is seeking a declaration that the Minister’s decision is unconstitutional, unlawful, and invalid and that it be set aside as well as a temporary order directing that, reported <a href="https://www.sabcnews.com/sabcnews/home-affairs-decision-to-terminate-zimbabwean-exemption-permit-is-invalid/">SABC News</a>.
Budlender on Tuesday argued that Motsoaledi should reconsider the decision to terminate the ZEP, following the proper process. He said:
<blockquote>
As we argue in our heads and in what follows, procedural rationality under the principle of legality required that ZEP holders and the public be afforded a hearing.
The foundation also argued that the decision was taken without the minister considering the impact it would have on the lives of ZEP holders, their children, and the broader public.
The inevitable effect of the minister’s decision is that, on 30 June 2023, tens of thousands of ZEP holders will be left undocumented.
This is due to the legal and practical barriers to securing alternative visas and permits.
… My client does not suggest and does not ask this court to find that the Minister may never terminate the ZEP programme.
That is not my client’s case and that is not the submission I make, but my client does say and I do submit that because any termination has such profound consequences in order to be valid, it must firstly, follow a fair and procedurally rational consultation process.
Secondly, be consistent with fundamental constitutional rights enshrined in our constitution and thirdly, be based on lawful, rational and reasonable grounds.
</blockquote>
The application by the Helen Suzman Foundation has been opposed.
Around 2008, thousands of Zimbabweans crossed the border into South Africa seeking better economic opportunities after the Zimbabwean economy had virtually collapsed.
South Africa then introduced the Dispensation of Zimbabwean Permit (DZP) to legalise Zimbabweans living and working in the country in 2009.
In 2014, the DZP was renamed to the Zimbabwe Special Permit (ZSP). The name changed again three years later to Zimbabwe Exemption Permit or ZEP.
In September 2022, South Africa’s Department of Home Affairs extended the permit which was due to expire on December 31, for a further six months to June 30, 2023.
South Africa allowed ZEP holders with critical skills to apply for visas to remain in the country.
According to the Zimbabwean Exemption Permit Holders Association (ZEPHA), the number of permit holders is about 160 000, but each person has an average of three to four dependents.
This means that close to one million Zimbabweans will be negatively affected by South Africa’s decision to discontinue the ZEP scheme.
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

"SA Decision To Terminate Zimbabwean Exemption Permit Is Invalid"

The Helen Suzman Foundation (HSF)’s legal team on Tuesday, 11 April 2023 said terminating the Zimbabwean Exemption Permit (ZEP) scheme without proper public consultation is unlawful.
The Pretoria High Court is currently hearing a challenge that the HSF brought against the termination of the special permit for Zimbabweans by South Africa’s Department of Home Affairs.
<a href="https://ewn.co.za/2023/04/11/terminating-zep-without-proper-public-consultation-unlawful-hsf-tells-court">Eye Witness News</a> reported that in his opening address, Advocate Steven Budlender, for the foundation, said the termination of the ZEP programme will turn upside down the lives of people who had been in South Africa legally for several years.
Budlender argued that neither ZEP holders nor South Africans at large were given the chance to express their thoughts before the decision was taken. He said:
<blockquote>
We have a decision that is going to fundamentally change people’s lives and it’s a decision that was taken without any attempt to hear them first – a common cause.
It’s a decision that the minister has told these people repeatedly he will not reconsider.
… In a constitutional dispensation can a minister say to people who’ve been here 13 years lawfully: ‘I’m going to decide your fate, I’m going to put in place a decision which is going to decide your fate and which requires you effectively to leave the country’ – without hearing them first?
And we say, no. We say if the Constitution means anything, and if PAJA (Promotion of Administrative Justice Act) means anything and if the principle of legality means anything that could never be a proper view.
</blockquote>
Around 2008, thousands of Zimbabweans crossed the border into South Africa seeking better economic opportunities after the Zimbabwean economy had virtually collapsed.
South Africa then introduced the Dispensation of Zimbabwean Permit (DZP) to legalise Zimbabweans living and working in the country in 2009.
In 2014, the DZP was renamed to the Zimbabwe Special Permit (ZSP). The name changed again three years later to Zimbabwe Exemption Permit or ZEP.
In September 2022, South Africa’s Department of Home Affairs extended the permit which was due to expire on December 31, for a further six months to June 30, 2023.
South Africa allowed ZEP holders with critical skills to apply for visas to remain in the country.
According to the Zimbabwean Exemption Permit Holders Association (ZEPHA), the number of permit holders is about 160 000, but each person has an average of three to four dependents.
This means that close to one million Zimbabweans will be negatively affected by South Africa’s decision to discontinue the ZEP scheme.
More: <a href="https://zero.pindula.co.zw/">Pindula News</a>

Terminating ZEP Without Proper Public Consultation Unlawful, South African NGO Tells Court

South Africa-based 23-year-old Fine Arts student Musa Nyathi faces an uncertain future as he is among tens of thousands of Zimbabweans who will be forced to leave the country by June next year after the expiry of their special permits.
Nyathi, who has lived in South Africa for 14 years since the age of nine, has been languishing at home for the last ten months.
2021 was meant to be the last year of his studies at the Tshwane University of Technology but failing one of his modules meant he would have to register in 2022 to complete his degree. He told <a href="https://www.sabcnews.com/sabcnews/zimbabwean-permit-holders-helen-suzman-foundation/">SABC News</a>:
<blockquote>
I had a problem when I applied for my visa application late last year. I was told that I would have a certain grace period but when I went to apply they told me that the grace period is for refugees and people under that category.
</blockquote>
Nyathi said his attempt to explain to the Department of Home Affairs the circumstances relating to the week’s delay in submitting his visa application was ignored. He said:
<blockquote>
I’m not sure what kind of reasons they were looking for because there were actually unforeseen circumstances.
I was expecting to complete my course last year and by the end of the year move back home but due to the COVID-19 regulations and the like, we ended up having our exams later on the latest in early December.
</blockquote>
Since 2008, Nyathi’s mother has done everything possible to ensure that the family is on the right side of the law with regard to its immigration status.
The Department of Home Affairs said it was still investigating why eight months after Nyathi appealed its decision to reject his visa application, he is still waiting for a response despite a number of follow-up inquiries. Said Nyathi:
<blockquote>
I honestly just want to complete my course because I only had a single module left that I was unable to complete last year but if I am free to do so I may freely leave the country.
</blockquote>
According to the Helen Suzman Foundation, however, Nyathi’s situation is happening all too often as the expiry of the ZEP in June next year approaches.
The Foundation, and other immigration stakeholders, believe South Africa’s Department of Home Affairs lacks the capacity to deal fairly with Zimbabweans seeking to regularise their stay in the country and therefore must be made to reconsider its decision by the courts.

"SA's Home Affairs Lacks Capacity To Deal With Zimbabwean Permit Holders"

The Helen Suzman Foundation (HSF) has launched legal action to challenge South Africa’s Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP).
The permit allowed nearly 200 000 Zimbabweans to live and work in that country legally.
However, in November 2021, the SA Cabinet took a decision not to renew the permits when they expired on 31 December.
ZEP holders were given a 12 months grace period to apply for other types of permits or leave.
HSF argues that the decision will leave thousands of Zimbabweans desperate and vulnerable. It said:
<blockquote>
It is not the position of HSF that those migrants who are in South Africa unlawfully should be entitled to remain, nor even that the ZEP must continue in perpetuity.
Rather, our position is that those who have scrupulously observed South Africa’s laws in order to live and work here, under the ZEP, cannot have such permits terminated without fair process, good reason and a meaningful opportunity to regularise their status. It is what our constitutional order demands.
</blockquote>
Civil rights groups argued it would be impossible for current ZEP holders to successfully apply for other permits, meaning they will have no option but to leave the country. Said the foundation:
<blockquote>
This special dispensation regime has offered legal protection to approximately 178 000 Zimbabwean nationals, allowing them to live, work and study in South Africa.
It has prevailed for well over a decade, meaning that permit-holders have built lives, families and careers here, and contributed to South Africa and its economy.
At present, ZEP holders must have obtained other forms of residency authorisation — in the vast majority of cases, an almost impossible requirement — by 31 December 2022 or leave South Africa.
They will be put to a desperate choice: to remain in South Africa as undocumented migrants with all the vulnerability that attaches to such status or return to a Zimbabwe that, to all intents and purposes, is unchanged from the country they fled.
There are thousands of children, who have been born in South Africa to ZEP holders during this time, who have never even visited their parents’ country of origin.
</blockquote>
<h4>More: <a href="https://www.news24.com/news24/southafrica/news/helen-suzman-foundation-in-court-bid-to-challenge-decision-to-terminate-zimbabwean-exemption-permit-20220615">News24</a></h4>

Zimbabwe Exemption Permits Termination To Be Challenged In Court

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