Aaron Motsoaledi loses appeal bid on Zimbabwe exemption permits

Minister of home affairs Aaron Motsoaledi lost his application to appeal a judgment that requires him to go reconsider the Zimbabwe exemption permits (ZEP) regime after the high court in Pretoria ruled on Monday that his application had no reasonable prospects of success. 

The court found crucial to determining whether there were prospects for a successful appeal was the quality of the evidence — on what the minister had taken into account when he made the decision to terminate the ZEP regime, which allows about 178,000 permit holders to lawfully remain in SA.

The court said Motsoaledi hadn’t submitted an affidavit; instead it had been the director-general of home affairs who had deposed affidavits.

“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 decisionmaker, could give evidence as to what passed through his mind,” the court said. 

It also rejected the argument by the minister’s legal team that his decision wasn’t subject to review under the Promotion of Administrative Justice Act (Paja) since it was was an executive decision, and not administrative in nature, and therefore reviewable by a court only if it was irrational in law.

This was relevant because it was common cause — both sides agreed when the case was heard — the minister hadn’t consulted those who would be affected by his decision before it was taken. The minister argued he had consulted after the decision was taken, and this was good enough for a rational decision in law. 

The court said its judgment had found the minister’s decision flawed both in terms of Paja and on the basis of rationality.

Motsoaledi’s spokesperson Thabo Mokgola, said the minister had noted the judgment and was studying it.

The court found: “The minister does not attempt to deal with and answer the judgment’s reasoning set out from paragraphs [52] to [56] where the judgment sets out that the minister was not only obliged to consult beforehand under section 3 of Paja and that it is so required even under the principle of legality that the procedure had to be followed by the minister had to be rational.”

Unless Motsoaledi successfully petitions the Supreme Court of Appeal, he will now have to consider afresh the ZEP regime after a fair process, which would include consulting those affected.

The decision means, pending a further decision by the minister, current ZEPs are deemed to remain valid. ZEP holders will continue to enjoy the legal protections they now have and may not be ordered out or detained on the grounds their permits aren’t valid.

Note: October 17 2023
This story has been updated with the response of home affairs minister Aaron Motsoaledi 

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