Motsoaledi ‘still studying judgment’ after ZEP appeal court loss

It remains to be seen whether Home Affairs Minister Aaron Motsoaledi will petition to the Supreme Court of Appeal (SCA) after suffering a court defeat in the Zimbabwean Exemption Permit (ZEP) case.

On Monday, the Gauteng High Court in Pretoria dismissed, with costs, Motsoaledi’s application for leave to appeal against a 28 June ruling on his decision to terminate the ZEP programme.

Motsoaledi now has to decide whether to petition to the SCA or abide by the latest court ruling.

“The minister is still studying the judgment,” Motsoaledi’s acting spokesperson, Thabo Mokgola told The Citizen on Tuesday.

Appeal fails

Motsoledi filed an appeal application, which was heard on 18 September, seeking an order to argue its case before the SCA.

The application was opposed by the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa (Cormsa).

In its judgment this week, the high court concluded Motsoaledi’s appeal had no reasonable prospects of success.

The court found Motsolaedi had not submitted an answering affidavit in the appeal, despite him being the “decision-maker” on the non-renewal of the ZEP.

“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 judgment reads.

ALSO READ: ‘No legitimate purpose to continue ZEP’, Home Affairs argues in court

The court also rejected the argument by Home Affair‘s legal team it erred in its ruling by relying on the Promotion of Administrative Justice Act (Paja) in determining that the minister did not afford ZEP holders a reasonable opportunity to make representations.

It maintained the minister’s decision was flawed both in terms of Paja and on the basis of rationality.

ZEP termination unlawful

The high court ruled in June that Motsoaledi’s failure to consult with ZEP holders and other interested parties and, therefore, declared his November 2021 decision “unlawful and unconstitutional”.

At the same time, the court ordered the ZEP would remain valid for the next 12 months until the conclusion of a fair public participation process.

The ZEP deadline was extended by six months to 31 December, with Motsoaledi citing a wave of visa and waiver applications from affected Zimbabwean nationals.

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

The decision was taken to give the ZEP holders an opportunity to apply for one or other visas provided for in the Immigration Act they may qualify for.

The ZEP has allowed tens of thousands of Zimbabweans to live, work and study in South Africa since 2009 as part of the Dispensation of Zimbabweans Project (DZP).

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