In what has been labelled as a “landmark decision”, the Constitutional Court recently dismissed an application by Home Affairs Minister Aaron Motsoaledi for leave to appeal against the Gauteng High Court’s ruling that the ZEP programme had been unlawfully terminated.
The Helen Suzman Foundation and Consortium for Refugees and Migrants in South Africa (CoRMSA) opposed Motsoaledi’s decision to terminate the ZEP programme under the Promotion of Administrative Justice Act (PAJA). Their challenge led to the Constitutional Court confirming that all ZEP holders have a right to fair administrative action.
Summary of events
In a significant turn of events, the Pretoria High Court declared in June 2023 that Minister Motsoaledi’s decision to terminate the ZEP programme was unlawful, unconstitutional, and invalid. This was due to the lack of a fair process regarding the relevant governing legislation. The Minister had initially announced the end of the programme in 2021, but further extensions were granted to the 178,000 permit holders.
During these extension periods, Motsoaledi urged the permit holders to apply for other visas or return “home.” The High Court held that Motsoaledi did not conduct a fair “notice and comment” process and subsequently directed the Minister to conduct a fair process in reconsidering the end of the permits.
The High Court’s decision was set aside and remitted back to Minister Motsoaledi to conduct these processes. Despite the Minister’s subsequent attempts to appeal this decision, the Constitutional Court dismissed Motsoaledi’s application for special leave to appeal on June 18, 2024, as the application had “no reasonable prospects of success.”
Impact of the Constitutional Court’s decision
The Constitutional Court’s dismissal of the application for special leave to appeal means that Minister Motsoaledi must now comply with the High Court’s order, and any future decisions regarding the ZEP programme must be made in a “fair and just manner” in terms of which the ZEP holders’ views and interests are to be given adequate consideration. Notably, the ZEP will remain effective until 29 November 2025.
Does this new ruling affect you or your employees? Contact Invictus Group for legal advice.
