SCA sends home affairs minister packing in ZEP appeal
The judgment also clears the path for the Zimbabwean Immigration Federation to return to court and argue that it is only parliament, and not the home affairs minister, which can decide whether to extend the ZEP regime.
In 2023, the Johannesburg high court set aside a decision by former minister Aaron Motsoaledi to terminate the ZEP regime and to reconsider his decision, following a fair process.
The SCA's judgment on Friday said that counsel for the minister told the court that 'the order is being implemented, and ... the minister is following a fair process'. But the federation wants to go back to court to argue that ZEP-holders and their children enjoy constitutional rights in South Africa. If these are to be limited, only parliament may do so — 'by enacting a law of general application,' says the SCA's judgment.
The SCA did not give a view on whether that argument was correct, but it rejected an appeal by the minister that would have prevented the federation from ever making it.
When the high court gave its order, the federation was one of the parties in the litigation, along with the Helen Suzman Foundation (HSF). Theirs were two separate cases, which were heard together. While the federation and the HSF both wanted similar orders, at that time, from the high court, their grounds were different. And while the HSF asked the court for a final order, the federation only sought an interim interdict — it wanted to argue its main case at a later date. The court gave a final order, as sought by the HSF, and also the interim interdict sought by the federation.
The minister had already tried, and failed, to appeal against the HSF order.
In this case, the minister approached the SCA on appeal, saying the interim interdict was 'redundant' since the court had already granted a final order to the HSF.
In Friday's judgment, the SCA disagreed. Judge of Appeal David Unterhalter said the federation's case 'raised distinctive grounds of review', which laid the basis for an argument that was not raised or argued earlier — about the powers of the minister when there were constitutional rights at stake.
If the federation's argument was to be accepted, it 'would not permit the minister to terminate the ZEP regime'.
'That is a remedial outcome of a considerably more far-reaching kind because it reaches into the future and is not based on a reconsideration,' said Unterhalter. The redundancy argument could therefore not hold, he said.
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