The Helen Suzman Foundation is one of several groups challenging Minister Aaron Motsoaledi’s decision to scrap the Zimbabwean Exemption Permit (ZEP) system. The Foundation argues that the decision was made without consultation and should be revoked. In the Pretoria High Court on Tuesday, it urged that the matter be sent back to the Home Affairs Minister for proper consultation.
The ZEP, introduced in 2009, regularised the status of Zimbabweans fleeing to South Africa for political or economic reasons, allowing permit holders to live, work and study in the country. The system is set to expire at the end of June, affecting nearly 180,000 permit holders and their families. Minister Motsoaledi suspended the ZEP in November 2021, extended it to December 2022, and then again to 30 June 2023 to give holders time to apply for alternative permits. Without such permits, they risk deportation or voluntary repatriation to Zimbabwe.
The case has attracted significant attention among Zimbabweans, as the outcome could have major regional implications. If the 178,000 permit holders are forced to leave South Africa or qualify for alternative visas—an unlikely prospect given the stringent criteria of the Department of Home Affairs’ Critical Skills List—their lives would be profoundly disrupted.
Advocate Steven Budlender, representing the Helen Suzman Foundation, told the full bench of three judges that Motsoaledi’s decision lacked proper public consultation and gave no prior notice to ZEP holders. “Today’s case is about 178,000 people who are here lawfully under a scheme voluntarily put in place by the government. Debates about porous borders are irrelevant,” he said. He noted that over 13 years, many permit holders have married, had children and started businesses, all lawfully. The minister’s decision, he argued, would force virtually all of them to return to Zimbabwe, impacting security and the economy, yet it was made without consultation.
Four related cases are on the court’s docket this week. In three, the Helen Suzman Foundation, the Zimbabwe Immigration Federation and the ZEP Holders Association (Zepha) seek to have the minister’s decision set aside as unlawful and returned for fair consideration. Zepha goes further, claiming that ZEP holders are entitled to permanent residence in South Africa. A fourth case, brought by the All Truck Drivers Forum and Allied South Africa, asks the court to declare the entire ZEP system invalid, arguing that the minister lacked authority to create or extend it. Advocate Matthews Mojapelo, representing the truckers, seeks a 12‑month period for ZEP holders to obtain alternative permits or leave the country.
Budlender contended that the law requires a minister to provide compelling reasons before consulting the public, and that no evidence shows the minister was open to persuasion. “We have no affidavit from the minister saying he was open to persuasion. His public statements over the last 18 months make clear that the decision to terminate the ZEP programme was final,” he said, adding that the decision would force people to leave the country they consider home. He urged the court to find in favour of the Foundation under the Promotion of Administrative Justice Act (PAJA) and, failing that, to set aside the decision as procedurally irrational. He also cited constitutional guarantees of dignity and children’s rights, noting that the decision threatens family separation for children who have known only South Africa as home.
The Foundation seeks a remittance of the decision to the minister for reconsideration in line with PAJA. Pending that outcome, it argues that all existing ZEPs should remain valid and that holders should retain the protections of the Immigration Act—namely, freedom from arrest, deportation or detention, and the right to enter and exit South Africa, provided they meet other entry requirements.
David Simonsz, representing the Consortium for Refugees and Migrants in South Africa (CoRMSA), described the minister’s decision as irrational and inconsistent with statements from Director‑General Livhuwani Makhode. In an affidavit, Makhode clarified that the exemption regime was always intended to be temporary and did not confer permanent residence. He also disputed the Foundation’s claim that a decision not to extend the ZEP is irrational until Zimbabwe’s economy improves, noting that the Foundation has not defined what level of economic improvement would justify ending the blanket exemption.
The case resumes on Wednesday, when the minister’s legal representatives will present their arguments before the court.
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