Home Affairs Minister Aaron Motsoaledi is persisting in his legal battles to abolish the Zimbabwean Exemption Permit (ZEP) program.
In June 2023, the Pretoria High Court ruled the termination of the ZEP as unlawful and unconstitutional. The Supreme Court of Appeal subsequently dismissed Motsoaledi’s appeal, stating it lacked prospects of success. Undeterred, the Minister has now approached the Constitutional Court, seeking adjudication on the same grounds.
The application filed in the apex court, led by Home Affairs director-general Livhuwani Tommy Makhode, requests leave to appeal the entire June 2023 judgment of the Pretoria High Court. This judgment directed the Minister to reconsider the termination of the program through a fair, lawful, and consultative process.
Despite the Pretoria High Court’s refusal to grant leave to appeal, Makhode argues that the court erroneously disregarded his affidavit as “impermissible hearsay,” although no such finding was explicitly made in the main judgment.
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Makhode further asserts that the Pretoria court failed to consider other raised grounds, notably the doctrine of separation of powers and the misinterpretation of public participation.
He disputes the court’s agreement with the Helen Suzman Foundation that the Minister should have consulted before terminating the program, arguing that post-decision representations were sufficient to ensure procedural fairness.
Regarding the court’s finding on the impact of the decision on ZEP holders’ rights, Makhode contends that such considerations were duly taken into account and that the Minister had justified the limitation of ZEP holders’ rights based on improved conditions in Zimbabwe.
Makhode emphasizes the ongoing controversy surrounding the issue, highlighting the department’s current inability to take action against ZEP holders due to the court order. He cites the complexity of constitutional matters and public interest as reasons to grant leave to appeal.
The Helen Suzman Foundation and others are expected to oppose the application, with a deadline for filing papers set for March 15th.
