‘Motsoaledi has made up his mind’: ZEP non-renewal will affect many lives, court hears

The Helen Suzman Foundation has insisted that Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) programme without formal consultation was not in line with the law.

The full bench of the Gauteng High Court in Pretoria heard the Department of Home Affairs’ leave to appeal application on Monday.

Motsoaledi and Home Affairs director-general Tommy Makhode, who are the applicants in the litigation, are seeking an order to argue its case before the Supreme Court of Appeal (SCA).

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This follows the high court’s 28 June ruling which declared the termination of the ZEP unlawful and set it aside.

In their judgment, Judges Colleen Collis, Mandlenkosi Motha and Gcina Malindi ruled the matter go back to Motsoaledi for reconsideration due to the minister’s failure to conduct a proper public participation process.

The court also declared, pending the process, the ZEP would remain valid for the next 12 months.

‘Zero prospects of success’

Advocate Carol Steinberg, counsel for the Helen Suzman Foundation, argued during court proceedings that Motsoaledi failed in his duty to open formal discussions with permit holders before making a decision on the non-renewal of the ZEP in November 2021.

“It is common cause that this decision impacted on the lives of 178 000 people and their children and of course, all the South Africans whose lives are inextricably bound up with the 178 000 and in 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’s common cause that the minister did not in fact hear from the affected people before making the decision {to terminate the ZEP] … he called for representations later,” she told the same full bench on Monday.

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Steinberg said it did not matter whether the Promotion of Administrative Justice Act (PAJA) or the principle of legality was at play in the case.

“There is no court in South Africa that would ever say the minister would make a decision which profoundly impacts on the lives of many people without hearing from them first. This affects people’s whole lives, where they live, where their children go to school [and] how they earn a living,” the advocate said.

Earlier, Advocate William Mokhare had argued the court erred in its ruling by relying on the PAJA in determining that Motsoaledi did not afford ZEP holders a reasonable opportunity to make representations.

Watch proceedings below:

Steinberg, however, said there were no “realistic” prospect of success regardless of Home Affairs’ arguments.

“A 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,” she continued.

“The SCA, on repeated occasions, has frowned upon high courts granting leave to appeal where there is just no prospect of success and our submission is that there really can’t be.”

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She said there was “no evidence” Motsoaledi applied his mind to this case and asked a punitive costs order against the minister.

“If there should be a genuine, non-frivolous challenge to the constitutionality of a law or state conduct, it is appropriate the state bear the costs if the challenge is good.

“So … there can never be a chilling affect on government in defending its conduct or a law because the state has a budget and needs to have a budget to defend its conduct or laws,” Steinberg said.

‘Minister has made up his mind’

Advocate David Simonsz, representing the Consortium for Refugees and Migrants in South Africa (Cormsa), supported Steinberg’s submissions, saying there were no compelling grounds to grant the appeal.

“Even on the principle of rationality, which is a common cause, there needs to be a fair opportunity to affect the mind of the decision-maker.

“The minister has been quoted on record as indicating that he has made up his mind on this issue,” the advocate told the court.

Simonsz argued the court’s judgment was not intended to allow the ZEP to continue indefinitely.

“The court sent this decision back to the minister,” he said, adding Home Affairs should reconsider the matter within the 12 months period afforded by the court in its initial ruling.

“The path is a clear one… what 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 – once he takes into account the just and proper submissions and representations of those affected. That is the proper way forward.”

Judgment reserved

Meanwhile, Collis said the court’s judgment would be reserved and handed down after recess period.

“We are going to reserve our judgment on those two applications for leave to appeal, and then we will hand it down as soon as it is ready.

“Parties must bear in mind that the court is now on recess, so we accommodated the hearing of this application because you had set through the request during term already, but we will only hand down the judgment once the new term commences. We will advise the parties, and it will be uploaded onto case lines,” she said.

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