ZIMBABWEANS in South Africa breathed a temporary sigh of relief on Monday after Gauteng High Court Division in Pretoria dismissed Home Affairs minister Aaron Motsoaledi’s leave to appeal against a High Court ruling that set aside the government’s move to cancel the Zimbabwe Exemption Permits (ZEPs).
The court on June 28, 2023 declared that the minister's failure to consult with the ZEP holders, interested non-governmental organisations and the public, was unlawful, unconstitutional and invalid.
The ruling effectively restored the ZEP holders’ status for another 12 months.
Motsoaledi submitted an application for leave to appeal against the judgment and orders in July this year citing the Helen Suzman Foundation, the Consortium for Refugees and Migrants in SA and All Truck Drivers Forum and Allied South Africa as respondents.
The minister had argued that his decision was not reviewable under Promotion of Administrative Justice Act (PAJA) because it did not constitute administrative action.
Motsoaledi argued that the order violated the doctrine of separation of powers and so does the section 172 orders.
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In a judgment dated October 16, 2023, the High Court ruled that it was common cause that the minister’s decision was taken before consultation with the ZEP holders or NGOs acting in the interest of the ZEP holders or the public.
“Crucial to establishing the grounds for leave to appeal is the quality of evidence or the incontrovertible importance of the issue contemplated in section 17 (1) (a) (ii) respectively,” ruled the court.
“What renders the minister’s application destined for failure is his failure to dispose to the answering affidavits in the review proceedings. The minister could give evidence as to what passed through his mind and how his mind was exercised. Minister contends that his decision was of executive nature and therefore immunised from section 3 and 4 of PAJA.”
The court added that Motsoaledi’s powers had not been interfered with through the temporary court orders granted against him.