Issued by the FW de Klerk Foundation, on 11/07/2023

On 5 January 2022, the Minister of Home Affairs abruptly withdrew the Zimbabwean Exemption Permits (ZEP) without prior notice or consultation. This decision triggered legal action and scrutiny over its validity and adherence to legal principles, particularly regarding the procedural fairness, constitutional rights, and treatment of refugees in the country. 

On 28 June 2023, the High Court found that the Minister’s decision was invalid, unconstitutional and unlawful for the following reasons: 

• It was not made in accordance with the relevant legislation, namely the Promotion of Administrative Justice Act (PAJA). 
• It was procedurally unfair and irrational as it was made without first consulting ZEP holders, civil society and the South African public. Sections 3 and 4 of PAJA require that any administrative action which materially or adversely affects an individual’s rights or legitimate expectations must be procedurally fair. A clear statement of the action to be taken must be provided to all necessary stakeholders; adequate notice of a right of review or internal appeal must be given; and all affected individuals must be allowed a reasonable opportunity to make representations. Furthermore, the Minister failed to carry out his legal duty to hold a public inquiry and conduct the appropriate comment procedure surrounding his decision. 
• The Minister’s decision was made without any consideration of its impact on the lives of ZEP holders. In this regard, the High Court found that the Minister had provided no admissible evidence as to whether such considerations were, in fact, taken into account. The Court accordingly set aside the Minister’s decision to terminate the ZEP because of his gross failure to consider the implications of the decision on the affected people, as required under Section 6(2)(h) of PAJA. 
• The Minister breached the constitutional rights of ZEP holders and their children, including their right to dignity, access to health, employment, protection from deportation, and education. Despite arguing that conditions in Zimbabwe had improved to the extent that it was no longer necessary for ZEP holders to remain in South Africa, the High Court found that the decision lacked justification and evidence, rendering it an unjustified limitation of the rights of immigrants in terms of Section 172(1) of the Constitution, and that it was thus invalid.

The FW de Klerk Foundation has expressed deep concern over the events surrounding the ZEP withdrawal, specifically the importance of respecting the rights of Zimbabwean nationals and ensuring that the decisions of the Minister of Home Affairs align with the Constitution and relevant laws. 

Moreover, the Foundation acknowledges the significant contributions made by Zimbabwean nationals to the South African economy and job creation. Restricting the limited rights and opportunities available to Zimbabwean nationals would only perpetuate scapegoating them for broader socioeconomic challenges. 

The Foundation welcomes the order of the High Court, which declares that – during the next 12 months – existing ZEPs will remain valid, offering protection against arrest, deportation, and detention. In addition, ZEP holders can freely enter and depart South Africa without the need for additional documentation. While this provides temporary relief, the Minister’s potential appeal or initiation of a fair termination process is still uncertain and the situation calls for continued attention. 

In the face of this controversy, it is crucial for society to adopt a comprehensive and compassionate approach to immigrants, recognising the inherent dignity and worth of every human being, regardless of their nationality and status. The FW de Klerk Foundation remains committed to promoting dialogue, understanding, and respect for human rights in South Africa. 

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