The Helen Suzman Foundation (HSF), the Consortium for Refugees and Migrants (CORMSA), the Zimbabwean Immigration Federation and African Amity are seeking to have the court review and set aside Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) programme in December 2021.

The programme has been in existence, in various guises, since 2009 to cope with the influx of undocumented Zimbabweans fleeing political violence at that time.

Unless the three judges come to their assistance, the permit holders will become “undocumented”, and will not be able to work. They will also not be able to access education, health care facilities or their bank accounts, and will face deportation.

The case began with argument by Advocate Steven Budlender for the HSF, who submitted that “while there is a lot of paper before you”, the case was straightforward, and any of the five grounds for review justified an overturning of the minister’s decision.

“There can be no genuine dispute that it has profound consequences . . . they have been living in South Africa lawfully pursuant to a programme put in place voluntarily by the government 14 years ago,” he said, noting there had been no prior consultation with the thousands of permit holders or consideration of the impact on them.

“My client does not suggest that the minister may never terminate the programme. But my client does say, because any termination has such profound consequences, it must follow a fair and reasonable consultation process, be consistent with rights and be based on lawful, rational and reasonable grounds.”

Budlender noted that the minister himself had not filed an affidavit in the matter, only the director-general. This was not a “technical point”, but a serious issue because, in effect, he had “said nothing” about what he took into consideration when he made the decision.

Budlender said the decision had undoubtedly resulted in an unjustified limitation of the rights of the permit holders and their children who, for many, regarded South Africa as their only home.

When the minister announced his decision to terminate the programme, giving permit holders a grace period of a year, and then extending it by six months to 30 June 2023 because of the court action, he said the programme was always intended to be temporary.

He also pointed to South Africa’s increased unemployment rate and claimed that the permit holders were violating the conditions of their visas.

In its court papers, the department now says the decision was rational because conditions in Zimbabwe have improved, and that terminating the programme will alleviate pressure on the asylum system and save money.

Budlender said the allegations of improvements in Zimbabwe were unsubstantiated. “And we make the point that there is no dispute of the rates of extreme poverty having increased and the extent of political instability and violence.

“But even if everything was hunky dory, is that enough justification to send home people who have built their lives here, with no consultation, with no assessment of the impact on them and their children in flagrant disregard of their Constitutional right to dignity?”

Judgement will likely be reserved.

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