Zimbabweans seek interdict to prevent them being deported this year

The Zimbabwe Immigration Federation (ZIF) on Thursday sought an interim interdict to prevent holders of Zimbabwe Exemption Permits (ZEPs) being deported when the permits expire at the end of June.

The application is part of ongoing litigation by the Helen Suzman Foundation and others in the Pretoria high court challenging home affairs minister Aaron Motsoaledi’s refusal to extend the validity of the ZEPs. Motsoaledi’s decision means about 178,000 people and their dependents face being forcibly returned to their home country.

ZIF’s counsel, Tembeka Ngcukaitobi SC, outlined the grounds for an interdict, which he described as “moderate relief” when weighed against the prejudicial effects of the possible deportation of 178,000 people.

Ngcukaitobi argued that the basis for establishing the ZEP scheme in the first place had to do with the dire political and economic situation in Zimbabwe. In deciding to “terminate” the ZEP — or not extend it — the government’s reasoning is wanting, he said. The government’s action “is a constellation or a random assemblage of justification that has no bearing [for] introducing the scheme in the first place.”

Ngcukaitobi noted some of the reasons raised by the government — issues with unemployment, a lack of capacity and so on — bore no relation to the ZEP scheme. If the government had some reason to consider the situation in Zimbabwe had improved, he argued, it was nowhere before the court. Thus the decision to end ZEPs was “arbitrary”, which makes the decision unlawful. 

He also stressed that the ZIF was not seeking a stay until conditions had improved in Zimbabwe; the ZIF wants the government to make its determination on a proper basis with factual evidence before the court. 

Ngcukaitobi said the termination of the scheme could herald “catastrophe” as about 178,000 holders could be “rendered overnight” as illegal immigrants. They could then be forcibly deported, and would have to apply for asylum or voluntarily return to Zimbabwe and apply for various other visas.

Ngcukaitobi said the government itself has highlighted home affairs’ “dysfunctional” system — overwhelmed with asylum applications, lacking the capacity and ability to process visas in general. Moreover, even those holders of ZEPs who are attempting other legal means to remain in SA would not be protected on termination of the scheme. 

In seeking an interim interdict, the applicant must show that they have no other remedies available. Ngcukaitobi noted that permit-holders cannot write to the minister since he had made his intention clear, neither would they be able to apply for other visas (by the deadline). All they have available to stop possible infringements of their rights is to ask the court to grant them a form of protection, he said. 

Ngcukaitobi noted that the minister disputed whether evidence of Zimbabwe’s improvement can be assessed by the court. But, he argued, “this is a factual” question capable of judicial assessment. Either the minister had facts he considered or he did not. If he did, the minister should have shown the court. If the minister did not, then his decision is unlawful. 

Ngcukaitobi also raised reports by various bodies, such as Amnesty International, noting the worsening conditions in Zimbabwe. 

The minister's counsel, Sean Rosenberg SC, labelled Ngcukaitobi’s characterisation of the termination date as “apocalyptic” and “exaggerated”. The government would not, as a matter of course, simply deport 178,000 people, he said. 

“Many of them will be in position to make application to address that position,” he said. “Those of them who haven’t [will still be able to do so].” 

Rosenberg also reiterated that the only decisions that were possibly reviewable was Motsoaledi's two previous extensions of the ZEP. Simply letting the scheme lapse did not amount to a decision — let alone one that could be reviewed by a court, he said. 

Rosenberg also said it was home affairs that would be more prejudiced than the permit-holders, since a court order would be interfering with government functioning. Permit-holders, he argued, had other avenues available to them. 

Ngcukaitobi asked why the government was not prepared to say, under oath, that “no-one will be deported”. That could have saved litigation time and benefited everyone, he said. 

The case continues.

moosat@businesslive.co.za