Home Affairs Minister Loses Again – ZEP Holders Stay Protected, For Now

The Supreme Court of Appeal (SCA) has given Home Affairs Minister a legal smackdown in his latest attempt to kill off the Zimbabwe Exemption Permit (ZEP) regime. The court on Friday dismissed Minister Aaron Motsoaledi’s appeal, clearing the way for a much bigger constitutional battle that could decide whether the minister or Parliament has the final say on the fate of nearly 180,000 Zimbabwean nationals living legally in South Africa under the ZEP system.

Back in 2023, the Johannesburg High Court already ruled against Motsoaledi’s unilateral decision to terminate ZEPs, calling it unlawful and ordering him to start over, this time following a fair process. That judgment was based on a case brought by the Helen Suzman Foundation (HSF). Meanwhile, the Zimbabwe Immigration Federation had asked for an interim interdict to shield ZEP holders from arrest and deportation while they prepared to bring their full constitutional challenge.

The SCA has now confirmed that the interim order stands and that the federation can go ahead and argue its central claim, that only Parliament, not the minister, can decide to end the ZEP regime because constitutional rights are involved.

Judge David Unterhalter, writing for the SCA, highlighted that the federation’s case raises new and serious legal questions, especially about whether the minister even has the power to strip ZEP holders of rights they’ve enjoyed since 2009. The argument is that the Immigration Act requires “good cause” to revoke such rights, which the minister failed to prove. They also argue that deporting ZEP holders would violate international law under the principle of non-refoulement, since many would qualify as refugees.

Unlike the HSF’s case which asked for a do-over, the federation wants the court to declare that the minister never had the authority in the first place, a ruling that could stop any future attempts to axe the permits without Parliament’s go-ahead.

The SCA made it clear that the merits of the federation’s arguments still need to be tested in the High Court. But in the meantime, the interim protection for ZEP holders stays in place and the minister has to foot the legal bill.