South Africa's Supreme Court of Appeal (SCA) has dismissed an appeal by the Minister of Home Affairs against a Johannesburg High Court ruling on Zimbabwe Exemption Permits (ZEPs).
The permits, which benefit approximately 180,000 Zimbabweans, grant a special legal status allowing them to live and work in South Africa.
This latest judgment, delivered on Friday, 06 June, paves the way for the Zimbabwean Immigration Federation to return to court and argue that only Parliament, not the Minister of Home Affairs, has the authority to determine the continuation or termination of the ZEP regime.
In 2023, the Johannesburg High Court overturned a decision by then-Minister Aaron Motsoaledi to terminate the ZEP programme, ordering that the matter be reconsidered through a fair and lawful process.
In its ruling on Friday, the SCA noted that counsel for the Minister told the court that “the order is being implemented” and that “the Minister is following a fair process.”
However, the Zimbabwean Immigration Federation still seeks to return to court, arguing that ZEP holders and their children enjoy constitutional rights in South Africa.
According to the federation, if such rights are to be limited, this can only be done through an act of Parliament—“by enacting a law of general application,” as referenced in the SCA’s judgment.
While the SCA did not express a view on the merits of that constitutional argument, it firmly rejected the Minister’s attempt to prevent the federation from making the case in court.
When the High Court delivered its judgment, the Zimbabwean Immigration Federation and the Helen Suzman Foundation (HSF) were both involved in the proceedings. Though both parties sought similar outcomes, their legal arguments differed.
The HSF requested a final order from the court, while the federation pursued an interim interdict, intending to argue its main case at a later stage.
The court granted both: the final order sought by the HSF and the interim interdict requested by the federation.
The Minister had already unsuccessfully appealed against the HSF’s final order. In this latest appeal, the Minister argued that the interim interdict granted to the federation was redundant, since the court had already issued a final ruling in favour of the HSF.
The SCA rejected that view. Judge of Appeal David Unterhalter noted that the federation’s case raised “distinctive grounds of review” that had not been addressed in the HSF matter, specifically, whether the Minister has the power to terminate the ZEP regime in cases involving constitutional rights.
If the federation’s argument is ultimately upheld, the court noted, it “would not permit the minister to terminate the ZEP regime” without parliamentary involvement. Said Unterhalter:
That is a remedial outcome of a considerably more far-reaching kind because it reaches into the future and is not based on a reconsideration.
He concluded that the argument of redundancy could not stand, as the Zimbabwean Immigration Federation’s case raised distinct and independent legal issues that had not been addressed in the Helen Suzman Foundation matter.
More: TimesLive