SA: Court had no right to interfere with government’s work, says Motsoaledi as he challenges ZEP decision
News24
- Home Affairs Minister Aaron Motsoaledi is challenging a 28 June decision that found his termination of the Zimbabwe Exemption Permits unconstitutional and unlawful.
- The permits allow around 178 000 Zimbabweans to live and work in South Africa.
- But the Helen Suzman Foundation argues that Motsoaledi faces âno prospectâ of success on appeal, and says his application should be dismissed.
Home Affairs Minister Aaron Motsoaledi says the Gauteng High Court in Pretoria had no right to âinterfereâ with the governmentâs decision to terminate 14-year-old Zimbabwe Exemption Permits (ZEPs).
However, through his advocate, William Mokhare, he added that he was open to extending the 31 December deadline for the special permits, which granted legal status to around 178 000 Zimbabweans living in South Africa.
Motsoaledi is applying for leave to appeal the High Courtâs 28 June ruling that found the ministerâs decision to end the ZEPs âunlawful, unconstitutional, and invalidâ.
The court extended the permits for 12 months from 28 June, pending the conclusion of a âfair processâ that includes an adequate public participation process the court found had not been done before the 7 June gazette for the ZEP termination.
The June judgment followed the Helen Suzman Foundationâs application to set aside Motsoalediâs announcement to discontinue the special permits, which began in 2009.
During a virtual hearing on Monday, Mokhare told the High Court that Motsoaledi agreed that the ZEP issue was ânot only a matter of great importance and considerable public significance, butâŚa matter that raises huge constitutional implicationsâ.
Mokhare said its importance entailed the governmentâs prerogative to deal âwith the acceptance of foreigners within its own bordersâ â factors, Mokhare contended, that included âasylum, immigration, refugee, economic, political, and socioeconomic considerationsâ.
He recalled that the reasons for the special dispensation was political and economic âinstabilityâ in Zimbabwe, which caused âstrainâ on South Africa due to âthe influxâ of citizens in the countryâs northern neighbour.
âThe only way the ministerâs decision could be attacked is whether the ministerâs decision is rational. Rationality is a low-threshold type of review because it is more linked to the principle of deference, where the courts are loathed to interfere with executive decision-making, particularly where it is more linked to policy,â Mokhare said, adding that policy was not a âspecialised terrainâ of the courts.
Mokhare argued:
If the court finds that the initial decision, which was to give reprieve on a temporary basis for Zimbabweans because of the situation in their country, then the court cannot interfere with the decision to terminate if the executive [the government] concludes that those conditions are no longer prevalent. And therefore, this dispensation must come to an end.
But Mokhare said Motsoaledi was not opposed to extending the deadline.
âNothing prevents the minister from always looking at the conditions prevalent at the time and [taking] a decision that does not adversely affect the ZEP members.â
However, the Helen Suzman Foundation â through its advocate, Carol Steinberg â asserted that Motsoalediâs application should be dismissed. Steinberg said the minister should be given a âpunitive costs orderâ because his appeal had âno prospects of successâ at the Supreme Court of Appeal.
âA mere possibility of success, an arguable case, or one that is not hopeless is not enough. In short, our argument is that there are actually zero prospects of success in this case,â Steinberg asserted.
[MEDIA STATEMENT] The HSFâs Response to False Claims About âUrgent Application to Stop Mass Deportations of Illegal Immigrants.â pic.twitter.com/oKtqMiVSFe
â Helen Suzman Foundation (@HelenSuzmanFdn)Â September 5, 2023
She added that the 178 000 people affected by Motsoalediâs decision to terminate the permits had an âiron-clad rightâ to be heard before regulations were put in place.
âIn law, there is a watertight obligation to hear what affected people have to say before a decision impacting on their lives is made. It is the first principle of natural justice. It is [not in doubt] that the minister did not, in fact, hear from the affected people before making the [termination] decision. He called for representations later,â Steinberg said.
She added:
There is no court in South Africa that will ever say that the minister is entitled to make a decision â which profoundly impacts on the lives of many, many people â without hearing from them first.
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Her views were supported by advocate David Simonsz, who represented the Consortium for Refugees and Migrants in South Africa. Simonsz said no one â including the High Court â wanted to interfere with the governmentâs work.
He added that the Department of Home Affairs had to use the court-ordered 12-month extension to do a proper public participation process.
âWhat the minister should do is take the opportunity afforded to him by this court to follow a lawful process and make whatever decision he chooses to make â once he takes into account the just and proper submissions and representations of those affected. That is the proper way forward,â Simonsz argued.
But Mokhare dismissed the argument that there was no public consultation, saying the law allowed participation whether before or after a decision is taken and that the government had solicited views and opened visa applications for existing ZEP holders, who would not be affected by the December deadline should it arrive without their applications being finalised.
âThe point here is that we say there was [consultation] â there was [consultation] adapted to the circumstances of the case. We submit that there are prospects of success on the merits.â
The High Court reserved judgment.