Foundation wants arrests, deportations of ZEP holders suspended

The Helen Suzman Foundation (HSF) has asked the Pretoria high court to suspend the arrest or deportation of Zimbabwe Exemption Permits (ZEP) holders, pending an appeal by home affairs minister Aaron Motsoaledi, saying if this was not done it would lead to a human catastrophe.

The court ruled in June that Motsoaledi’s decision to terminate the ZEP, to grant a limited extension of the ZEP of only 12 months and to refuse further extensions beyond June 30 – as communicated in a public notice to Zimbabwean nationals on January 5 2022 – was unlawful, unconstitutional and invalid.

The case was brought by the foundation as well as the Consortium for Refugees and Migrants in SA on behalf of 178,000 ZEP holders.

Motsoaledi said the department would appeal the matter.

On Monday, the foundation’s executive director Nicole Fritz said the leave to appeal process suspended the operation of the underlying order in an ordinary course, adding that this meant that permit holders wouldn’t get any actual relief or help in the end.

“ZEP holders would also be deprived of their rights even if the SCA [Supreme Court of Appeal] and the Constitutional Court ultimately dismiss the minister’s appeal, as any judgment from the appellate courts would only be expected in a year or more. Accordingly, this application is necessary to avert a human catastrophe which this court has explicitly sought to prevent,” said Fritz in her affidavit.

“The effect of the minister’s position is that by December 31 2023, 178,000 ZEP holders, their family members and children, face the risk of being stripped of their existing rights, arrested, detained and deported, despite the court’s judgment and order.”

Fritz said the court order “shields thousands of ZEP holders and their children from the chaos and upheaval of arrest and deportation”.

“It safeguards their constitutional rights pending the conclusion of a lawful process. The consequences will be irrevocable, that fact in and itself renders this case extraordinary. 

“The minister has demonstrated a disdain for the value of the public participation. Rather than taking the sensible and human approach of respecting the need to protect ZEP holders rights, the minister has instead expressed his disdain for this court’s judgment.

“The clear intention is to preserve the status quo pending the final determination of the matter, one would expect a senior member of the executive to respect that intention. Instead, the minister seeks to subvert it, this response is itself exceptional,” Fritz said.

She said there can be no genuine dispute that ZEP holders and the public will be irreparably harmed if interim enforcement of the temporary protections is refused.

“If this court does not grant immediate execution of its order, the message it will send to ZEP holders is that the minister can use his considerable legal resources to avoid the consequences of his unlawful and unconstitutional conduct and that their challenge, although successful, will have been for nothing.

“To avoid these consequences, this court’s order must be operative pending the finalisation of the minister’s ill-fated appeal. This application has been brought on an urgent basis, to ensure that it is heard together with the application for leave to appeal or on a suitable date determined by this court.

“It is necessary for the matter to be decided now, to account for further potential delays and automatic appeals as even if a hearing could be secured before December 31 2023, there is the risk that any further automatic rights of appeal in terms of section 18(4) would drag out long after December 31 2023,” Fritz said.

She said it was necessary to ensure that ZEP holders have certainty and can make adequate plans for their lives.

“The respondents [minister, director-general and ATDF ASA] will not be unduly prejudiced. The urgency is entirely due to the minister’s intractable position and this is why the applicants [HSF] seek an order in terms of the notice of motion in this interim of enforcement application.”

mashalek@sowetan.co.za