Constitutional Court upholds rights of Zimbabwean Exemption Permit holders to fair administrative action

Johannesburg, South Africa – In a landmark decision, the Constitutional Court has confirmed that Zimbabwean Exemption Permit (ZEP) holders have a right to fair administrative action. This ruling comes after the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa (CoRMSA) challenged the Minister of Home Affairs' decision to terminate the ZEP under the Promotion of Administrative Justice Act, 2000 (PAJA).

The challenge was initiated on the grounds that the Minister's decision was unlawful, invalid, and unconstitutional, impacting approximately 178,000 Zimbabwean nationals currently holding ZEPs. On June 28, 2023, the Pretoria High Court ruled in favor of the applicants, finding that the decision was procedurally unfair and infringed on the constitutional rights of ZEP holders. The court highlighted that the Minister’s failure to conduct a fair 'notice and comment' process rendered the decision uninformed and procedurally irrational.

The High Court's decision was set aside and remitted back to the Minister to conduct a fair process that considers the views and interests of ZEP holders and the broader society.

Despite the Minister's attempts to appeal the High Court's decision, including applications to the High Court and the Supreme Court of Appeal, the Constitutional Court dismissed the Minister's application for special leave to appeal on June 18, 2024. The Constitutional Court found that the application had no reasonable prospects of success.

Norton Rose Fulbright South Africa’s Impact Litigation directors Jason Whyte and Laura Macfarlane, under the firm's Social Impact team, represented CoRMSA in the matter, with Advocate David Simonsz providing assistance. Their combined efforts were instrumental in securing this significant ruling that upholds the rights of ZEP holders.

Impact and next steps

The Minister of Home Affairs is now required to comply with the High Court’s order. Any future decisions regarding the ZEP must be made in a fair and just manner, ensuring that the views and interests of ZEP holders are adequately considered. The ZEP will remain effective until 29 November 2025.